TMI Blog2022 (4) TMI 511X X X X Extracts X X X X X X X X Extracts X X X X ..... f a statutory notice issued by OP No.1 subsequent to dishonour of cheque about five months before, the learned court below could have entertained the complaint and taken cognizance of offence under Section 138 of the N.I. Act as against the petitioner? More or less a similar question was before the Supreme Court in M/S. SICAGEN INDIA LTD. VERSUS MAHINDRA VADINENI ORS. [ 2019 (2) TMI 545 - SUPREME COURT ], wherein, it has been held that even a second statutory notice after re-representation of cheque is maintainable in law. In fact, the issue before the Supreme Court was, whether, a criminal complaint based on a subsequent or successive statutory notice filed under Section 138 of the N.I. Act is maintainable. In the decision, the Suprem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 82 Cr.P.C. assailing legality and judicial propriety of order of cognizance dated 2nd February 2011 (Annexure-3) passed in I.C.C. No.427 of 2010 by the learned S.D.J.M., Khurda on the grounds inter alia that it is not sustainable in law and therefore, liable to be quashed. 2. The petitioner pleaded that unless the impugned order under Annexure-3 is quashed, there would be miscarriage of justice and hence, inherent jurisdiction of this Court under Section 482 Cr.P.C. should be exercised. The petitioner happens to be the accused in a complaint case pending before the court below for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (here-in-after referred to as the NI Act ) which has been filed by OP No.1 all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore this Court to defend. 5. When a cheque is presented for encashment and stands dishonoured, the payee is required to issue a notice to the drawer demanding payment of the amount and in case, such request is not obliged, complaint under Section 138 of the N.I. Act is filed for the drawer having committed the offence. The question is, whether on the basis of a statutory notice issued by OP No.1 subsequent to dishonour of cheque about five months before, the learned court below could have entertained the complaint and taken cognizance of offence under Section 138 of the N.I. Act as against the petitioner? 6. More or less a similar question was before the Supreme Court in M/s. Sicagen India Ltd. Vrs. Mahindra Vadideni and Others (Crim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n launched. It was further held therein that no real or qualitative difference exists between a case where default is committed and prosecution immediately launched and another, where the prosecution is deferred till the cheque presented again gets dishonoured for the second or successive time. The purport and object of the N.I. Act has been discussed by the Supreme Court in M/s. Sicagen India Ltd. referring to Leathers case observing that if the entire purpose underlined Section 138 of the N.I. Act is to compel the drawers to honour their commitments made in course of business or other transactions, there is no reason why a person who has issued a cheque which is dishonoured and who failed to make payment despite statutory notice served up ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
