Sunder Das Rohra vs Anil Mishra
2022 Latest Caselaw 6916 Chatt

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                                                            Cr.Rev. No. 273 of 2014


                                                                           NAFR
                 HIGH COURT OF CHHATTISGARH, BILASPUR
                        Criminal Revision No. 273 of 2014
                          Order reserved on : 02/11/2022
                          Order delivered on : 18/11/2022

   Sunder Das Rohra, S/o Late Paras Ram, Rohra, Aged About - 49 years,
    R/o. Subhash Mill Road, Masanganj, Police Station - Civil Lines, Post &
    Tehsil- Bilaspur, Revenue & Civil District- Bilaspur (C.G.)
                                           ---- Petitioner/Applicant/Complainant

                                  Versus

   Anil Mishra, S/o. Mannu Lal Mishra, Aged About - 46 years, R/o
    Bangalipara, Gali No. 4, Police Station- Sarkanda, Post & Tehsil- Bilaspur,
    Revenue & Civil District - Bilaspur (C.G.)
                                                    ---- Respondent/Accused

For Petitioner/Complainant : Mr. Surfaraj Khan, Advocate For Respondent/Accused : Mr. Anil S. Pandey, Advocate

Hon'ble Shri Justice Rakesh Mohan Pandey C.A.V. Order

1. In this case the petitioner is the complainant, whereas, respondent is

accused. This criminal revision is filed against the order dated 01.04.2014

passed by the learned VIth Additional Sessions Judge, Bilaspur, in Cr.A. No.

43/2014, whereby criminal appeal preferred by the petitioner has been

dismissed and the order dated 21.09.2012 passed by the learned Judicial

Magistrate First Class, Bilaspur, in Complaint Case No. 361/2011 has been

affirmed whereby the complaint case filed under Section 138 of the

Negotiable Instrument Act, 1881 (for short 'N.I. Act') by the petitioner was

dismissed.

2. The complainant/petitioner filed a complaint case before the Court of Judicial

Magistrate First Class, Bilaspur against the respondent/accused under

Section 138 of N.I. Act for dishonour of cheque bearing No. 697158 dated

11.10.2010 for a sum of Rs.2,75,000/- drawn on I.C.I.C.I. Bank, Bilaspur

(C.G.).

Cr.Rev. No. 273 of 2014

3. The substance of allegations and assertions of the complaint case before

the trial Court was that the parties are known to each other and on account

of some necessity, the respondent took loan of Rs.2,75,000/- from the

complainant and in order to discharge said legal liability, alleged cheque was

issued on 03.08.2011 bearing No. 697160 drawn on I.C.I.C.I. Bank, Bilaspur.

The said cheque was presented on 04.08.2011 and which returned

dishonored with the remarks "stop payment". A legal demand notice was

sent to the respondent on 10.08.2011. Despite service, the respondent failed

to repay the cheque amount within the stipulated time period and hence,

complaint case under Section 138 of N.I. Act was filed. The substance of

accusation was stated to the respondent, who abjured it and pleaded non-

guilty. The complainant examined himself as PW-1, whereas respondent

examined Dr. Kumari Sunanda Dhenge, Handwriting Expert, as DW-1,

himself as DW-2, Samir Raut Rai, Sub-Branch Manager, as DW-3 and

Apoorva Tiwari, Agriculturist, as DW-4.

4. The learned trial Court after appreciation of oral and documentary evidence,

vide order dated 21.09.2012 acquitted the respondent and dismissed the

complaint case filed by the petitioner.

5. The petitioner preferred an appeal under Section 372 of Cr.P.C. against the

judgment of acquittal dated 21.09.2012 before the VI th Additional Sessions

Judge, Bilaspur (C.G.) and same was also dismissed vide order dated

23.11.2012 by the said court holding it as not maintainable.

6. The petitioner preferred Cr.Rev. No. 779/2012 before this Court and this

Court vide order dated 15.04.2013, set aside the order passed by VI th

Additional Sessions Judge, Bilaspur dated 23.11.2012 and remitted back the

matter to decide the criminal appeal on merits in accordance with law.

7. The learned Sessions Court dismissed the appeal preferred by the petitioner

Cr.Rev. No. 273 of 2014

mainly on two grounds: firstly, 15 days mandatory time period was not

granted to the respondent to make payment of the cheque amount from the

date of receipt of the demand notice as required under Section 138 (c) of

N.I. Act and further, the complainant could not prove the date of transaction

and no statement has been made in this regard. The learned lower appellate

court has affirmed the finding recorded by the learned trial Court.

8. Learned counsel for the petitioner submits that a loan was taken by the

respondent from the petitioner, therefore, the cheque was issued by the

respondent for a sum of Rs.2,75,000/- and according to Section 139 of N.I.

Act there would be presumption in favour of the holder of the cheque, the

bank informed the petitioner that the cheque has been dishonoured on

account of 'stop payment' which also amounts dishonour of cheque and the

legal demand notice was sent to the respondent. Learned counsel for the

petitioner placed reliance upon the judgments in case of C.C. Alavi Haji vs.

Palapetty Muhammed and another, (2007) 6 SCC 555; Narsingh Das

Tapadia vs. Goverdhan Das Partani and Another, (2000) 7 SCC 183; M/s

Laxmi Dyechem vs. State of Gujarat & Others, (2012) 12 JT 65 and H.M.

Satish vs. B.N. Ashok, 2007 Cri.L.J. 2312.

9. Learned counsel for the respondent submits that the learned trial Court has

rightly dismissed the complaint case filed by the petitioner. He further

submits that the cheque was stolen by the complainant and information in

this regard was given to the police on 02.08.2011 and this fact has been

admitted by the complainant in para-13 of his cross-examination where he

stated that oral information was given by the respondent to the police on

02.08.2011 and the concerned Bank was also instructed to stop payment.

Vide Ex.-D/7 the Superintendent of Post Office, Department of Post, Bilaspur

had informed that registered letter No. 1952 dated 14.09.2011 was delivered

Cr.Rev. No. 273 of 2014

to the addressee on 12.09.2011. Ex.-D/12 is the information given by the

respondent to the Police Station on 05.08.2011. From record it appears that

the complaint case was filed on 13.09.2011, whereas demand notice sent by

the complainant was served upon the respondent on 12.09.2011.

10. Proviso (c) to Section 138 of N.I. Act, 1881 which is mandatory one, provides

as under:-

138 (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.

11. The Hon'ble Supreme Court in case of Yogendra Pratap Singh vs. Savitri

Pandey and Another, (2014) 10 SCC 713 has held as under:-

"35. 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 filed 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 the law. It is not the question of prematurity of the complaint where it is filed before the 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 of 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

Cr.Rev. No. 273 of 2014

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 the 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."

12. In the present case, it is not in dispute that the cheque was issued on

03.08.2011, it was presented to the bank on 04.08.2011 and on the same

day, it was informed to the complaint that the cheque has been dishonoured,

legal demand notice under Section 138 of N.I. Act was sent on 10.08.2011

and same was received by the respondent on 12.09.2011, whereas the

complaint case was filed on 13.09.2011. Thus, the mandatory period

contemplated under Section proviso (c) of 138 of N.I. Act has not been

complied with. Therefore, the finding recorded in this regard by the courts

below is in accordance with law and does not require any interference.

13. The next question is regarding stop payment instruction issued by

respondent and his signature does not match with the specimen signature

available with the bank. The respondent has tried to make out a case that

his cheque bearing No. 697160 was lying in the drawer of the car from

where it was stolen on 02.08.2011 and information in this regard was given

to the Police Station on 02.08.2011 itself. It was a blank cheque and the

complainant by forging his signature presented it to bank but the same was

dishonoured as there was instruction from the respondent to stop payment.

14. Learned counsel for the petitioner submits that when demand notice is sent

by registered post by correctly addressing the drawer of the cheque,

mandatory requirement of issuance of demand notice in terms of proviso (b)

Cr.Rev. No. 273 of 2014

to Section 138 of the N.I. Act stands complied with. He submits that the

Hon'ble Supreme Court in case of C.C. Alavi Haji (supra) has held so, but it

is a case where the demand notice was not received by the

respondent/accused, therefore, present case is entirely different from the

case cited.

15. Learned counsel for the petitioner submits that account closed, payment

stopped, referred to the drawer are only species of that genus and the same

would attract Section 138 of N.I. Act. Similarly, dishonour on the ground that

the signatures do not match or that the image is not found, which too implies

that the specimen signatures do not match with the signatures on the

cheque, would constitute dishonour within the meaning of Section 138 of the

N.I. Act. He placed reliance upon judgment of the Hon'ble Supreme Court

rendered in M/s Laxmi Dyechem (supra). The law laid down by the Hon'ble

Supreme Court in the above case is that a question whether non-matching

of signature attracts Section 138 of the N.I. Act. The answer to it was given

in affirmative. The contention of the petitioner is that when there was

difference in the signature or mismatch of the signature, the bank authorities

ought to have disclosed this fact in their written information.

In the present case, the cheque was dishonoured on account of stop

payment. There was allegation by respondent about forging of his signature

on alleged cheque. The petitioner himself has admitted that the cheque in

dispute was lost or stolen by someone and on 02.08.2011 itself, information

in this regard was given by the respondent to the police. The petitioner

further admitted that instruction was also given to the bank to stop payment.

Despite knowledge of information to the police and the bank, the petitioner

presented the cheque on 03.08.2011 and same was returned dishonoured

on 04.08.2011 due to stop payment instruction. There might be mismatch of

the signature, but it is a case of stop payment, where after theft of a cheque,

Cr.Rev. No. 273 of 2014

information was given to the police and bank was also instructed to stop the

payment. Thereafter, the petitioner filed a complaint case on 13.09.2011, but

demand notice was served upon the respondent only on 12.09.2011,

therefore, the courts below have rightly dismissed the complaint case filed

by the petitioner and acquitted the respondent.

16. In light of the above discussion and the law laid down by the Hon'ble

Supreme Court, I do not find any illegality or irregularity in the judgment

passed by the courts below.

17. Consequently, the criminal revision deserves to be and is hereby dismissed.

Sd/-

(Rakesh Mohan Pandey) Judge

vatti