Gujarat High Court
Arifbhai Hajihusen Panja vs State Of Gujarat on 7 January, 2025
NEUTRAL CITATION
R/CR.MA/2684/2021 ORDER DATED: 07/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 2684 of 2021
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ARIFBHAI HAJIHUSEN PANJA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR ANKUR Y OZA(2821) for the Applicant(s) No. 1
PRASHANT V CHAVDA(8510) for the Respondent(s) No. 2
MR SOAHAM JOSHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 07/01/2025
ORAL ORDER
1. By way of present application under Section 482 of the Criminal Procedure Code, the applicant seeks to invoke extraordinary jurisdiction of this Hon'ble Court to quash and set aside Criminal Complaint No.889 of 2019 pending in the court of learned Additional Judicial Magistrate, Veraval on 14/08/2019.
2. The case of the complainant can be summarized as under:
2.1. The complainant and the accused both are residing at Page 1 of 19 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Tue Jan 21 2025 Downloaded on : Fri Jan 31 23:16:58 IST 2025 NEUTRAL CITATION R/CR.MA/2684/2021 ORDER DATED: 07/01/2025 undefined the same village and indulging the business of selling the fishes and since last more than four years, they were were in contact with each other and that is how they came close to each other and ultimately on 15/07/2019 as the accused was in dire need of the money therefore he has demanded Rs.3,00,000/- from the complainant and the same amount was given to the accused by the complainant and at that time the accused has handed over one cheque of Union of India bearing cheque no.019670 and given an assurance to the complainant that as and when the said cheque would be honoured before the bank concerned, the said cheque will be honoured. The complainant has deposited the said cheque and it came with the endorsement of 'insufficient fund' and therefore, a notice has been issued by the complainant which was duly served. Despite service of notice, the accused has not paid the said amount. Therefore, the complainant has filed complaint before the competent court on 13/08/2019.
After recording verification of the complainant, court concerned thought it fit that prima facie offence is made out against the accused and therefore, passed order under Section 204 of the Criminal Procedure Code to issue process against the accused person. The summons issued by the Page 2 of 19 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Tue Jan 21 2025 Downloaded on : Fri Jan 31 23:16:58 IST 2025 NEUTRAL CITATION R/CR.MA/2684/2021 ORDER DATED: 07/01/2025 undefined Hon'ble Court had already been served to the applicant and immediately the applicant has filed present application challenging the same.
3. Mr. Ankur Oza, learned advocate appearing for the applicant accused has submitted that in fact it is settled preposition of law and well within the knowledge of one and all that Negotiable Instruments Act, 1881 (for short 'the NI Act') is based upon the technical issues and before institution of the complaint, certain basic and essential parameters of the provisions of the act are required to be fulfilled. The first and foremost requirement is that show cause notice is to be issued to the accused by demanding amount mentioned in the cheque after receiving the memo from the bank with a specific demand that amount mentioned in the body of the cheque is to be paid within a period of fifteen days after receiving the copy of the notice and if he fails to adhere the dictum mentioned in the notice, in that event the complainant would be constrained to institute complaint against him.
4. Mr. Ankur Oza, learned advocate has read the Section 138 of the NI Act and submitted that it is the condition Page 3 of 19 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Tue Jan 21 2025 Downloaded on : Fri Jan 31 23:16:58 IST 2025 NEUTRAL CITATION R/CR.MA/2684/2021 ORDER DATED: 07/01/2025 undefined precedent to fulfill the basic and essential requirement of the provisions of the Section 138(b) of the NI Act before institution of the complaint. Admittedly as per the case of the complainant, the said cheque had been dishonoured on 30/07/2019 and notice issued by the advocate of the complainant on 30/07/2019 which was duly served to the applicant accused on 31/07/2019. The copy of the complaint as well as notice issued by the learned advocate of the complainant and other documents are appended herewith along with the memo of the application. He has referred those documents and submitted that in the operative part of the notice a specific demand was being made by the learned advocate for the complainant that Rs.3,00,000/- requires to be paid to his client within a period of eight days and receipt to that effect is to be obtained from his client and if he fails to fulfill the said requirement, in that event, the complainant would be constrained to register complaint against him.
5. Mr. Ankur Oza, learned advocate has submitted that in fact there is a fundamental flow in the notice itself. It is the specific condition en-grafted in the body of the statute itself that 15 days time is required to be given to the accused to Page 4 of 19 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Tue Jan 21 2025 Downloaded on : Fri Jan 31 23:16:58 IST 2025 NEUTRAL CITATION R/CR.MA/2684/2021 ORDER DATED: 07/01/2025 undefined repay the amount more particularly the provisions of Section 138 of the NI Act that the demand notice is to be made to the accused with a specific direction to repay the said amount within a period of fifteen days. Herein this case on hand, instead of fifteen days, eight days time is mentioned in the body of the notice which clearly goes on to show that the basis, essential and requisite requirement to fulfill the provision of the law is at all not made. The averment made in the notice itself shows and suggests that fundamental flows have been found in the foundation of the structure of the notice itself and language employed in the notice could not be in consonance with the statutory provision. Therefore, the complaint itself is not maintainable.
6. Mr. Ankur Oza, learned advocate has further submitted that in fact the complainant has instituted the complaint on 13/08/2019 whereas notice issued by the complainant had been served to the accused on 31/07/2018. Therefore, as per the provisions of the NI Act, at least, for minimum period of fifteen days, the complaint has to wait for the compliance of the issuance of notice and before that if the complaint is to be instituted, in that event, it would certainly fall under the Page 5 of 19 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Tue Jan 21 2025 Downloaded on : Fri Jan 31 23:16:58 IST 2025 NEUTRAL CITATION R/CR.MA/2684/2021 ORDER DATED: 07/01/2025 undefined category of premature complaint and upon the said complaint the Hon'ble court could not have to take cognizance. Admittedly there was fundamental flow in the issuance of the notice and the complaint itself is premature, in that event, at the time of recording the verification of the complaint and taking cognizance of the fact, the court concerned would have to verify whether the complaint is premature and/or filed within time framed schedule and after jumping to the particular conclusion that after fulfilling of the necessary and requisite parameters of the provisions of the NI Act complaint had been filed by the complainant in that event order of the process could have been issued.
7. Mr. Ankur Oza, learned advocate has also submitted that if the complaint as well as other documents annexed along with the body of the complaint are read as it is in its entirety, in that event, no offence could be said to have been made out against the accused person and if the complainant is permitted to continue with the proceedings, in that event, it would amount to be gross abuse of process of law and ultimately leads to miscarriage of justice. Therefore, the prosecution instituted against the applicant is required to be Page 6 of 19 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Tue Jan 21 2025 Downloaded on : Fri Jan 31 23:16:58 IST 2025 NEUTRAL CITATION R/CR.MA/2684/2021 ORDER DATED: 07/01/2025 undefined quashed and set aside.
8. Mr. Oza, learned advocate has put reliance upon case laws referred in the case of Rajeshbhai Muljibhai Patel vs. State of Gujarat reported in 2020 (0) AIJEL-SC 65742 and submitted that as per the principles of law laid down by the Apex Court in the above stated case, the case of the applicant is squarely fall in those categories and hence the prosecution instituted therefore, is required to be quashed and set aside. He has also relied upon the decision in the case of Yogendra Pratapsingh vs. Savitri Pandey reported in 2014(10) SCC 713 and submitted that in the said decision, it was held that service of notice in terms of Section 138 proviso
(b) of the NI Act is part of cause of action for lodging the complaint and communication to the accused about the fact of dishonouring of the cheque and calling upon to pay the amount within 15 days is imperative in character.
9. Mr.Prashant V. Chavda, learned advocate for the respondent complainant has made a statement that he has lost his file in the office and could not be able to make submissions and has made a statement before this Court that Page 7 of 19 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Tue Jan 21 2025 Downloaded on : Fri Jan 31 23:16:58 IST 2025 NEUTRAL CITATION R/CR.MA/2684/2021 ORDER DATED: 07/01/2025 undefined in absence of original papers, he would not like to make any submissions before this Court and appropriate order may be passed after considering the material available on record. The court has already extended support to him to go through the file of the applicant and/or learned APP and make submission on merit.
10. Mr.Soaham Joshi, learned APP appearing for the respondent-State has submitted that essentially there is a dispute between the private parties and private complaint has been registered by the complainant but at the time of taking cognizance upon the fact, the learned Judge has verified all the materials and therefore it can safely be said that there are no error of fact on law could be said to have been made by the court concerned at the time of taking cognizance upon the facts of matter and at this time of passing of order of issuance of process. Therefore, appropriate order may be passed.
11. Before dwelling into the issue involved in this matter, I would like to bring certain factual aspects on record so far as conduct of Mr.Chavda, learned advocate who appears on behalf of the respondent no.2 original complainant. On Page 8 of 19 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Tue Jan 21 2025 Downloaded on : Fri Jan 31 23:16:58 IST 2025 NEUTRAL CITATION R/CR.MA/2684/2021 ORDER DATED: 07/01/2025 undefined 24/10/2024, the co-ordinate bench of this Court has passed following order.
"The record-sheet suggests that learned advocate Mr.Prashant Chavda for respondent No.2 is consistently not appearing in the matter. However, time and again, the accommodation appears to have been granted in the interest of justice.
Today, when the matter was called out, as usual, learned advocate Mr.Prashant Chavda was not present.
Keeping in mind the interest of the litigant, as a last chance, the matter is adjourned to 29.10.2024.
It is, however, clarified that if, on that day, no one appears in the matter, then the matter shall be decided on the basis of the record available with the Court.
Let the copy of this order be served upon the respondent No.2 through the jurisdictional police station."
11.1. Thereafter the matter was listed on 19/11/2024 and on that day once again the co-ordinate bench of this Court passed following order on 19/11/2024.
"Following order was passed on 24th October, 2024.
"The record-sheet suggests that learned advocate Mr.Prashant Chavda for respondent No.2 is consistently not appearing in the matter. However, time and again, the accommodation appears to have been granted in the interest of justice.
Today, when the matter was called out, as Page 9 of 19 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Tue Jan 21 2025 Downloaded on : Fri Jan 31 23:16:58 IST 2025 NEUTRAL CITATION R/CR.MA/2684/2021 ORDER DATED: 07/01/2025 undefined usual, learned advocate Mr.Prashant Chavda was not present.
Keeping in mind the interest of the litigant, as a last chance, the matter is adjourned to 29.10.2024.
It is, however, clarified that if, on that day, no one appears in the matter, then the matter shall be decided on the basis of the record available with the Court.
Let the copy of this order be served upon the respondent No.2 through the jurisdictional police station."
Despite the aforesaid order, learned advocate Mr.Chavda for respondent no.2 has filed leave note.
Ordinarily, leave notes are not applicable in criminal matters. However, keeping in mind the interest of respondent No.2, the present matter is adjourned. On the next date, this Court will not wait for learned advocate Mr.Chavda to render any assistance. This fact has already been intimated to respondent No.2 vide order dated 24th October, 2024 which was ordered to be served through the jurisdictional police station. Thus, this Court expects respondent No.2 to either secure the presence of his learned advocate Mr.Chavda or engage any other lawyer for effective representation.
Stand over to 29th November, 2024."
11.2. Despite the above stated two orders have been passed by the co-ordinate Bench of this Court on two different occasions, today in the morning when the matter is called out, somebody has mentioned on behalf of learned advocate Mr.Chavda that matter may be kept in the second session. Page 10 of 19 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Tue Jan 21 2025 Downloaded on : Fri Jan 31 23:16:58 IST 2025
NEUTRAL CITATION R/CR.MA/2684/2021 ORDER DATED: 07/01/2025 undefined Hence, this matter is posted in the second session. 11.3. Today in the second session, when matter is called out, learned advocate Mr. Chavda has come and he has made aforesaid request and therefore request of learned advocate Mr. Chavda is not entertained by this Court.
12. Having gone through the record and proceedings as well as material supplied by the applicant along with the memo of the application, it is found out from the record that the applicant is original accused and respondent no.2 is original complainant. There were some money transactions took place between the parties and in lieu of that the cheque is handed over by the applicant herein to the complainant. When the said cheque has been deposited by the complainant in his account, the said cheque has been dishonoured and the memo is given by the bank to the complainant specifically stating that there is insufficient fund in the account. Therefore a demand notice had been issued by the complainant through his advocate on 30/07/2019. The notice issued by the complainant has been duly served to the accused and said fact is clearly reflected from the body of the complaint that on the Page 11 of 19 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Tue Jan 21 2025 Downloaded on : Fri Jan 31 23:16:58 IST 2025 NEUTRAL CITATION R/CR.MA/2684/2021 ORDER DATED: 07/01/2025 undefined very next date, the notice has been duly served. Despite serving notice, the applicant accused has not paid the said amount and therefore complaint has been filed by the complainant.
13. For the purpose of entertaining present application, certain sequence of events of incident are required to be considered.
1) Notice issued by the complainant on 30/07/2017 served to the accused on 31/07/2017 and the complaint was filed on 13/08/2019. Plea of the complainant has been recorded on the same day. The order of issuance of process has been passed on 14/08/2019. Now at this stage, I would like to reproduce provisions of Section 138 of the Negotiable Instruments Act which reads as under:
"138. Dishonour of cheque for insufficiency, etc., of funds in the account.--
Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the Page 12 of 19 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Tue Jan 21 2025 Downloaded on : Fri Jan 31 23:16:58 IST 2025 NEUTRAL CITATION R/CR.MA/2684/2021 ORDER DATED: 07/01/2025 undefined cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless--
(a)the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b)the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c)the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation.--For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability."
2) It is requirement of the statute that if cheque is issued by the accused account maintained by him for any lawful debt, in that event, the complainant has to issue show cause notice for demand of the same amount within a period of fifteen days and specific request has to be made to the accused that to see to it/manage to pay the said amount within a period of fifteen Page 13 of 19 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Tue Jan 21 2025 Downloaded on : Fri Jan 31 23:16:58 IST 2025 NEUTRAL CITATION R/CR.MA/2684/2021 ORDER DATED: 07/01/2025 undefined days and if the accused fails to repay the said amount within that stipulated period of time, in that event, the complainant has to register criminal complaint against the accused.
14. At this juncture, I would like to reproduce relevant paragraphs of the decision in the case of Yogendra Pratapsingh (supra) which read as under:
29. For about 7 years since the decision was given by this Court in Narsingh Das Tapadia1, the various High Courts, as indicated above, continued to take the view that presentation of a complaint under Section 138 of the NI Act before the accrual of the cause of action does not render it not maintainable if cognizance had been taken by the Magistrate after expiry of 15 days of the period of notice. In such matters, no illegality or impropriety found to have been committed by the Magistrate in taking cognizance upon such complaint. This legal position, however, was not accepted by a two-Judge Bench decision of this Court in Sarav Investment & Financial Consultancy2. Dealing with the provision under Section 138 of the NI Act, this Court held that Section 138 contained a penal provision; it was a special statute. Having regard to the purport of the said provision as also in view of the fact that it provides for a severe penalty, the provision warrant a strict construction. This Court emphasized that clause (c) of the proviso to Section 138 provides that the holder of the cheque must be given an opportunity to pay the amount within 15 days of the receipt of the notice. Complaint, thus, can be filed for commission of an offence by drawee of the cheque only 15 days after service of the notice. In Sarav Investment & Financial Consultancy2, this Court, thus, held that service of notice in terms of Section 138 proviso (b) of the NI Act a part of cause of action for lodging the complaint and communication to the accused about the fact of dishonouring of the cheques and calling upon him to pay the amount within 15 days was imperative in character. It is true that in Sarav Investment & Financial Consultancy2, there is no reference of the decision of this Court in Narsingh Das Tapadia1.
30. Sarav Investment & Financial Consultancy2 led to the view being taken by the High Courts that a complaint under Section 138 of the NI Act filed before expiry of 15 days of service of notice was premature and such complaint could not be treated as complaint in the eye of law and criminal proceedings initiated are liable to be quashed. This is seen from the view of the Calcutta High Court in Sandip Guha[17] and the judgment of the Himachal Pradesh High Court in Rattan Chand[18].Page 14 of 19 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Tue Jan 21 2025 Downloaded on : Fri Jan 31 23:16:58 IST 2025
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31. Section 138 of the NI Act comprises of the main provision which defines the ingredients of the offence and the punishment that would follow in the event of such an offence having been committed. Appended to this Section is also a proviso which has three clauses, viz., (a), (b) and
(c). The offence under Section 138 is made effective only on fulfillment of the eventualities contained in clauses (a), (b) and (c) of the proviso. For completion of an offence under Section 138 of the NI Act not only the satisfaction of the ingredients of offence set out in the main part of the provision is necessary but it is also imperative that all the three eventualities mentioned in clauses (a), (b) and (c) of the proviso are satisfied. Mere issuance of a cheque and dishonour thereof would not constitute an offence by itself under Section 138.
32. Section 138 of the NI Act has been analysed by this Court in Kusum Ingots & Alloys Ltd.[19] wherein this Court said that the following ingredients are required to be satisfied for making out a case under Section 138 of the NI Act:
(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability;
(ii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(iii) that cheque is returned by the bank unpaid, either because the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
(iv) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(v) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
33. We are in agreement with the above analysis.
34. In K.R. Indira[20], a two-Judge Bench of this Court observed that the offence under Section 138 of the NI Act could be completed if all the above components are satisfied.
35. Insofar as the present reference is concerned, the debate broadly centers around clause (c) of the proviso to Section 138 of the NI Act. The Page 15 of 19 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Tue Jan 21 2025 Downloaded on : Fri Jan 31 23:16:58 IST 2025 NEUTRAL CITATION R/CR.MA/2684/2021 ORDER DATED: 07/01/2025 undefined requirement of clause (c) of the proviso is that the drawer of the cheque must have failed to make the payment of the cheque amount to the payee within 15 days of the receipt of the notice. Clause (c) of the proviso offers a total period of 15 days to the drawer from the date of receipt of the notice to make payment of the cheque amount on its dishonour.
36. Can an offence under Section 138 of the NI Act be said to have been committed when the period provided in clause (c) of the proviso has not expired? Section 2(d) of the Code defines 'complaint'. According to this definition, complaint means any allegation made orally or in writing to a Magistrate with a view to taking his action against a person who has committed an offence. Commission of an offence is a sine qua non for filing a complaint and for taking cognizance of such offence. A bare reading of the provision contained in clause (c) of the proviso makes it clear that no complaint can be filed for an offence under Section 138 of the NI Act unless the period of 15 days has elapsed. Any complaint before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint at all in the eye of law. It is not the question of prematurity of the complaint where it is filed before expiry of 15 days from the date on which notice has been served on him, it is no complaint at all under law. As a matter of fact, Section 142 the NI Act, inter alia, creates a legal bar on the Court from taking cognizance of an offence under Section 138 except upon a written complaint. Since a complaint filed under Section 138 of the NI Act before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint in the eye of law, obviously, no cognizance of an offence can be taken on the basis of such complaint. Merely because at the time of taking cognizance by the Court, the period of 15 days has expired from the date on which notice has been served on the drawer/accused, the Court is not clothed with the jurisdiction to take cognizance of an offence under Section 138 on a complaint filed before the expiry of 15 days from the date of receipt of notice by the drawer of the cheque.
37. A complaint filed before expiry of 15 days from the date on which notice has been served on drawer/accused cannot be said to disclose the cause of action in terms of clause (c) of the proviso to Section 138 and upon such complaint which does not disclose the cause of action the Court is not competent to take cognizance. A conjoint reading of Section 138, which defines as to when and under what circumstances an offence can be said to have been committed, with Section 142(b) of the NI Act, that reiterates the position of the point of time when the cause of action has arisen, leaves no manner of doubt that no offence can be said to have been committed unless and until the period of 15 days, as prescribed under clause (c) of the proviso to Section 138, has, in fact, elapsed. Therefore, a Court is barred in law from taking cognizance of such complaint. It is not open to the Court to take cognizance of such a complaint merely because on the date of consideration or taking cognizance thereof a period of 15 days from the date on which the notice has been served on the drawer/accused has elapsed. We have no doubt that all the five essential features of Section 138 of the NI Act, as noted in the judgment of this Court in Kusum Ingots & Alloys Ltd.19 and which we have approved, must be satisfied for a complaint to be filed under Section
138. If the period prescribed in clause (c) of the proviso to Section 138 Page 16 of 19 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Tue Jan 21 2025 Downloaded on : Fri Jan 31 23:16:58 IST 2025 NEUTRAL CITATION R/CR.MA/2684/2021 ORDER DATED: 07/01/2025 undefined has not expired, there is no commission of an offence nor accrual of cause of action for filing of complaint under Section 138 of the NI Act.
38. We, therefore, do not approve the view taken by this Court in Narsingh Das Tapadia1 and so also the judgments of various High Courts following Narsingh Das Tapadia1 that if the complaint under Section 138 is filed before expiry of 15 days from the date on which notice has been served on the drawer/accused the same is premature and if on the date of taking cognizance a period of 15 days from the date of service of notice on the drawer/accused has expired, such complaint was legally maintainable and, hence, the same is overruled.
39. Rather, the view taken by this Court in Sarav Investment & Financial Consultancy2 wherein this Court held that service of notice in terms of Section 138 proviso (b) of the NI Act was a part of the cause of action for lodging the complaint and communication to the accused about the fact of dishonouring of the cheque and calling upon to pay the amount within 15 days was imperative in character, commends itself to us. As noticed by us earlier, no complaint can be maintained against the drawer of the cheque before the expiry of 15 days from the date of receipt of notice because the drawer/accused cannot be said to have committed any offence until then. We approve the decision of this Court in Sarav Investment & Financial Consultancy2 and also the judgments of the High Courts which have taken the view following this judgment that the complaint under Section 138 of the NI Act filed before the expiry of 15 days of service of notice could not be treated as a complaint in the eye of law and criminal proceedings initiated on such complaint are liable to be quashed.
15. Now, if notice issued by the complainant has to be read, in that event, it would be found that by flouting the basic norms of the statutory provisions specific demand was being made to repay the said within eight days therefore prima facie it is found out that the contents of the notice are not in consonance with the provisions of law and found to be against the statutory provision and therefore on the strength of the above stated non fulfillment of the basic and requisite requirement of the provisions of the statute the complaint of Page 17 of 19 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Tue Jan 21 2025 Downloaded on : Fri Jan 31 23:16:58 IST 2025 NEUTRAL CITATION R/CR.MA/2684/2021 ORDER DATED: 07/01/2025 undefined the complainant would not able to stand on his leg for a moment and solely on that count the concerned court could not have to take cognizance upon the complaint of the complainant. The observations made by the Hon'ble Apex Court in the case of Yogendra Pratapsingh (supra) appears to be applicable in the present case.
16. It is also found out from the record that those set of documents are very much available on record. Despite the said fact the court concerned has taken cognizance and ordered to issue process against the accused. The said view adopted by the learned Judge is against the provisions of law and therefore requires to be set aside.
17. The Hon'ble Apex Court has time and again in catena of cases held that the provisions of NI Act more particularly Section 138 of the NI Act are based upon technical issues and before institution of the complaint, basic and essential requirement of statute are required to be fulfilled and if the complaint fails to adhere the terms and conditions mentioned in the statute in true sense and proper perspective, in that event, the complaint is required to be quashed. Page 18 of 19 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Tue Jan 21 2025 Downloaded on : Fri Jan 31 23:16:58 IST 2025
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18. Considering the above, I am of the opinion that the present application is required to be entertained.
19. Accordingly, present application is allowed and Criminal Complaint No.889 of 2019 pending in the court of learned Additional Judicial Magistrate, Veraval is quashed and set aside. Rule is made absolute to the aforesaid extent.
(DIVYESH A. JOSHI,J) ILA Page 19 of 19 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Tue Jan 21 2025 Downloaded on : Fri Jan 31 23:16:58 IST 2025