K.Srinivasa Rao vs State Of Ap
2021 Latest Caselaw 1824 AP

      THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO

            CRIMINAL PETITION No.985 OF 2019

ORDER:-

     The petitioner is the accused in CC.No.489 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

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.489 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

AIR 2015 SC 157

THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO

CRIMINAL PETITION No.985 OF 2019

Date : 15-04-2021

sj