THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO
CRIMINAL PETITION No.984 OF 2019
ORDER:-
The petitioner is the accused in CC.No.491 of 2018 on the
file of II Additional District Judge, Vijayawada, Krishna District
under Section 138 and 142 of Negotiable Instruments Act.
2. It is the case of the defacto complainant that the petitioner
had issued four post dated cheques for an aggregate amount of
Rs.29,71,000/- towards repayment of the loan obtained by the
petitioner from the defacto complainant. One of these cheques
dated 20.11.2017 given for a sum of Rs.6,57,000/- was
presented in the bank, the same was returned with 'insufficient
funds' vide a return memo dated 27.11.2017. Thereupon a legal
notice dated 30.11.2017 was issued demanding payment of
amount covered under the dishonoured cheque. The notice sent
to the accused was returned on 09.12.2017. Thereupon the
complaint was filed on 20.12.2017.
3. The petitioner herein had approached this Court by way of
the present Criminal Petition contending that the fifteen day
period required under Section 138 (c) of Negotiable Instruments
Act had not elapsed before the filing of the complaint as even
according to the complainant, the notice was returned on
09.12.2017
and the complaint was filed on 20.12.2017.
4. Sri T.Venugopal, learned counsel for defacto complainant relies upon a Judgment of the Hon'ble Supreme Court in 2 Yogendrapratap Singh Vs., Savithri Pandey1 to contend that even in such cases, liberty is available to the defacto complainant to file afresh even his case was to be rejected on the ground that the complaint was premature.
5. A perusal of the complaint clearly shows that the complaint has been filed before the fifteen day period set out under Section 138 (c) of Negotiable Instruments Act had not elapsed. As such the complaint would have treated to be a premature complaint as the offence under Section 138 of Negotiable Instruments Act would be made out only upon refusal or negligence of the payee to pay out the cheque amount within 15 days. It is only on the expiry of the 15th day would the offence under Section 138 of Negotiable Instruments Act made out. In such circumstances CC No.491 of 2018 is quashed leaving it open to the defacto complainant to take such remedies as are available under law.
6. In the result, the Criminal Petition is allowed.
Miscellaneous petitions, pending if any, in this Criminal Petition shall stand closed.
___________________________________ JUSTICE R.RAGHUNANDAN RAO Date : 15-04-2021 sj 1 AIR 2015 SC 157 3 86 THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO CRIMINAL PETITION No.984 OF 2019 Date : 15-04-2021 sj