Jharkhand High Court
Krishna Kant Kushwaha vs The State Of Jharkhand on 28 January, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Revision No. 1167 of 2013
Krishna Kant Kushwaha, S/o Late Moti Mahto
... ... Petitioner
-Versus-
1. The State of Jharkhand
2. Chedi Thakur, S/o Sitari Thakur ... ... Opp. Parties
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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Through Video Conferencing
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JUDGMENT
31/28.01.2021
Heard Ms. Sunita Kumari, the learned amicus curiae
appearing on behalf of the petitioner.
2. Heard Mr. Abhay Kumar Tiwari, the learned A.P.P.
appearing on behalf of the Opposite Party No.1-State.
3. The learned trial court vide Judgment dated 11.05.2009
passed by the learned Judicial Magistrate, 1st Class, Civil Court,
Hazaribag in Complaint Case No. 371 of 2009 / Trial No. 929 of
2009 had convicted the petitioner under Section 138 of the
Negotiable Instruments Act, 1881 and had sentenced him to
undergo Simple Imprisonment for one year and six months and
had directed him to pay Rs. 1,50,000/- (Rupees One Lac Fifty
Thousand) to the Complainant as compensation.
4. The petitioner preferred Criminal Appeal No.69 of 2009
against the Judgment of conviction and the order of sentence
passed by the learned trial court in which the learned appellate
court vide Judgment dated 12.09.2013 passed by the learned
Addl. Sessions Judge-V, Hazaribagh upheld the conviction of
the petitioner under Section 138 of the Negotiable Instruments
Act, 1881 and modified and reduced the substantive sentence to
Simple Imprisonment for one year and directed the petitioner
to pay a compensation of Rs. 1,50,000/- (Rupees One Lac Fifty
Thousand) to the Complainant/Opposite Party No.2 and
dismissed the criminal appeal.
5. The petitioner has preferred the present criminal revision
petition against the Judgment passed by the learned appellate
court whereby and whereunder the learned appellate court
confirmed the Judgment of conviction of the petitioner passed
by the learned trial court with modification of the sentence.
Arguments on behalf of the Petitioner
6. Learned amicus curiae appearing on behalf of the
petitioner submitted that it has been recorded in the order
dated 14.03.2014 that the petitioner has already served the
sentence. She further submitted that the learned trial court has
wrongly accepted the notice regarding bouncing of cheque to
be validly served and this aspect of the matter has not been
properly considered by the learned appellate court also.
Arguments on behalf of the Opposite Party No.1-State
7. Learned counsel appearing on behalf of the Opposite
Party No.1-State submitted that there is no illegality or
perversity in the impugned judgments and accordingly, the
same do not call for any interference. He also submitted that
inspite of repeated opportunities to compromise the case out of
court, no joint compromise petition has been filed and
accordingly, the present case does not call for any interference.
However, he submitted that if any amount has been paid in
furtherance of the so-called compromise, the same may be
adjusted.
Findings of this Court
8. After hearing the learned counsel for the parties and
going through the judgments passed by the learned courts
below and the lower court records of the case, this Court finds
that on 18.03.2008, the Complainant presented a Complaint
before the court of the learned Chief Judicial Magistrate,
Hazaribag alleging inter-alia that the Complainant had given a
loan of Rs.1,50,000/- to the petitioner and to return the loan
amount, the petitioner issued a cheque of Rs. 1,50,000/- on
28.01.2008 and when the Complainant presented the cheque for
its encashment, it was dishonoured by the bank due to
insufficient fund. He again presented the Cheque on 30.01.2008
and it was again dishonoured and thereafter, he again
presented the cheque on 19.02.2008 and it was again
dishonoured due to insufficient fund. Thereafter, the
Complainant sent a legal notice on 29.02.2008 to the petitioner
through registered post, but the petitioner neither returned the
amount, nor replied.
9. After examination of the Complainant on solemn
affirmation, vide order dated 05.04.2008, it was found that a
prima facie case under Section 138 of the Negotiable Instruments
Act is made out against the petitioner.
10. On 02.09.2008, the substance of accusation for the offence
under Section 138 of the Negotiable Instruments Act, 1881 was
read over and explained to the petitioner in Hindi to which he
pleaded not guilty and claimed to be tried.
11. In course of trial, altogether two witnesses were
examined on behalf of the Complainant. C.W.-1 is Chhedi
Thakur who is the Complainant himself and C.W.-2 is Lakhan
Gupta who is a witness on the point of transaction of giving
loan to the petitioner and he has not been cross-examined on
behalf of the petitioner. The Complainant exhibited the Cheque
No.343586 dated 28.01.2008 as Exhibit-1, Cheque Return Bank
Memo dated 28.01.2008 as Exhibit-2, Cheque Return Bank
Memo dated 29.01.2008 as Exhibit-2/1, Cheque Return Bank
Memo dated 19.02.2008 as Exhibit-2/2, Legal Notice dated
29.02.2008 as Exhibit-3 and the Registered Postal Receipt dated
29.02.2008 as Exhibit-4.
12. On 02.03.2009, the statements of the petitioner were
recorded under Section 313 of Cr.P.C. wherein the petitioner
denied the incriminating evidences put to him and claimed to
be innocent and stated that the Complainant was an L.I.C.
agent and the Complainant had forced him to issue the cheque
at his chamber and an F.I.R. has also been lodged. The
petitioner did not adduce any oral or documentary evidence in
his defence.
13. This Court finds that the learned trial court considered
the oral and documentary evidences adduced on behalf of the
Complainant and the arguments advanced on behalf of the
parties and recorded its findings in Para-10 which reads as
under:
"10. In this case, I have perused the record and found that the
cheque which is proved as Ext.-1 bears date 28.01.08 and
according to complainant, he presented the said cheque finally
on 29.02.08. So the cheque is here presented within stipulated
period. According to complainant, the said cheque was bounced
due to insufficient fund. In his support complainant proved
bank memo dt. 19.02.2008 which proved as Ext.-2/2. I have
perused the Ext.-2/2 and found that the said cheque was
bounced due to insufficient fund.
According to the complainant, after that on 29.02.08, a
legal notice was issued against the accused. Legal notice is
proved as Ext.-3. I have perused the legal notice and found that
there is a specific demand made by the complainant against the
Ext.-1. The said notice was sent by registry slip, registry slip is
proved as Ext.-4, registry slip bears dt. 29.02.08. I have perused
the registry slip and record and found that the accused is also
belonging from Distt.- Hazaribag, so it may be presumed that
the said notice was received by the accused till 2 March, 2008.
So, the complainant was bound to wait up to 17.03.2008 and
from the record, it appears that complainant waited 15 days and
after that on 18.03.2008, this case was filed. On these aforesaid
points, defence tried to take several contradictions, but failed.
During statement taken u/s. 313 Cr.P.C., accused admitted
that the complainant is L.I.C. Agent and he took the said cheque
from his chamber. So, there is no denial that the cheque was not
issued by the accused. So considering these all above facts and
circumstances and under the presumption made u/s 138 N.I.
Act, I am in the opinion that the accused is found guilty u/s
138 N.I.Act."
14. This Court finds that the learned trial court recorded a
finding on the basis of presumption that as the accused-
petitioner belongs from Distt. - Hazaribag, the Legal Notice
dated 29.02.2008 was received to him till 2 March, 2008 and
thereafter, the Complainant waited for 15 days i.e., upto
17.03.2008 and after that on 18.03.2008, this case was filed.
15. This Court further finds that the learned appellate court
considered the evidences available on record and recorded its
findings in Paras-15 and 16 which reads as under:
"15. I carefully examined the Judgment and Order passed by
the court below. He has elaborately dealt with the requirements
/ ingredients / procedure enshrined U/s. 138 Negotiable
Instrument Act. He has given a definite finding on all the
ingredients and procedure in Paragraph No.10 of the Judgment.
He has thoroughly scrutinized the period of notices, presenting
of cheque, dishonouring of the same, issuance of notice on behalf
of Complainant, etc. in a very meticulous manner. I find no
infirmities in the said Judgment as to the fastening the criminal
liability upon accused. The quantum of sentence has been
pronounced after hearing the parties, separately, on the point of
sentence.
16. One thing I have noticed that court below has directed to
make payment of Rs.1,50,000/- to the complainant /
Respondent No.2 in his Judgment and Order. This can be done
under the amended provisions of Section 138 Negotiable
Instruments Act. But this direction necessarily shall have an
impact over the substantive sentence prescribed by the court
below. The court below has prescribed a substantive sentence of
one year and six months. It is slightly excessive. In any view of
the matter, the substantive sentence of one year shall meet the
ends of justice. Therefore, I do hereby modify the substantive
sentence prescribed by the court below. In other words, I
confirm the conviction with modification of sentence. The
modified sentence shall run as follows: - The Accused /
Appellant shall have to undergo simple imprisonment for one
year and he is further directed to pay a compensation of
Rs.1,50,000/- to the Complainant/Respondent No. 2."
16. This Court finds that the learned appellate court recorded
findings that the learned trial court has elaborately dealt with
the requirements / ingredients / procedure enshrined under
Section 138 Negotiable Instrument Act and has given a definite
finding on all the ingredients and procedure and has further
recorded that the learned trial court has thoroughly scrutinized
the period of notices, presenting of cheque, dishonouring of the
same and issuance of notice on behalf of Complainant, etc. in a
very meticulous manner and the learned appellate court found
no infirmities in the judgment passed by the learned trial court.
17. This Court finds that C.W.-1 is the Complainant of the
case and he deposed that he has filed the complaint case against
the petitioner and he got acquaintance with the petitioner 42
years ago and on 11.01.2008, he gave Rs.1,00,000/- through
cheque and Rs.50,000/- in cash, total Rs.1,50,000/-, as friendly
loan to the petitioner and when he demanded the money, the
petitioner issued Cheque No.343586 to him on 28.01.2008 and
when he presented the cheque on 28.01.2008, it was
dishonoured by the bank due to insufficient fund. He again
presented the Cheque on 29.01.2008 and it was again
dishonoured on 30.01.2008 and thereafter, he again presented
the cheque on 19.02.2008 and it was again dishonoured due to
insufficient fund. Thereafter, he sent a legal notice on 29.02.2008
to the petitioner through registered post, but when the
petitioner did not give any reply, he filed the present case on
18.03.2008. C.W.-2 is a witness on the point of giving loan to the
petitioner by the Complainant and he has not been cross-
examined on behalf of the petitioner.
18. This Court finds that the petitioner had issued Cheque
No.343586 dated 28.01.2008 to the Complainant and the cheque
was lastly dishonoured on 19.02.2008 and thereafter, the
Complainant sent the legal notice to the petitioner on 29.02.2008
and then, he presented the Complaint on 18.03.2008.
19. This Court finds that both the learned courts below have
failed to consider that there is no evidence available on the
records of the case which suggests that the legal notice dated
29.02.2008 sent under registered cover was ever served upon
the petitioner. The learned courts below have proceeded on the
premise that the accused is also belonging from Distt. -
Hazaribag, so it may be presumed that the said notice was
received by the accused till 2 March, 2008 i.e. on the third day
when counted from the date of issuance of notice.
20. This Court is of the considered view that the date of
service of notice of cheque bouncing is a material date for the
purposes of calculation of time line giving a cause of action for
filing a Complaint under Section 138 of the Negotiable
Instruments Act, 1881 and it is for the Complainant to prove
that the cause of action arose as per the provisions under the
proviso (c) to Section 138 of Negotiable Instruments Act, 1881
which clearly provides that the cause of action arises upon
expiry of 15 days from the date of receipt of the cheque
bouncing notice. In absence of the specific date regarding
service of cheque bouncing notice, the finding of the learned
trial court on the basis of presumption that the legal notice
dated 29.02.2008 was received by the accused-petitioner till 2
March, 2008 is perverse and cannot be sustained in the eyes of
law.
21. This Court is of the view that the presumption regarding
service of notice sent through registered cover can be drawn
only after expiry of 30 days from the date of issuance of notice
as has been held by the Hon'ble Supreme Court in the
judgment passed in the case of Subodh S. Salaskar vs.
Jayprakash M. Sah and Another) reported in (2008) 13 SCC 689.
In the said judgment, the notice was sent through speed post
and although the actual date of service of notice was not
known, the Complainant proceeded on the basis that the same
was served within the reasonable period. It was held that if the
presumption of notice within the reasonable period is raised,
the deemed service at best can be taken to be 30 days from the
date of its issuance and the accused was required to make
payment in terms of the said notice within 15 days thereafter
and the complaint petition therefore could have been filed after
expiry of 15 days given to the accused for payment of money
after receipt of notice.
22. The Hon'ble Supreme Court in the Judgment passed in
the case of Yogendra Pratap Singh vs. Savitri Pandey and
Another reported in (2014) 10 SCC 713 again dealt with the law
regarding filing of complaint case under section 138 of
Negotiable Instruments Act, 1881, in Paragraphs- 30 to 38
which read as under:
"30. 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 fulfilment 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.
31. Section 138 of the NI Act has been analysed by this Court in
Kusum Ingots & Alloys Ltd. 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: (SCC p. 753, para 10)
"(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."
32. We are in agreement with the above analysis.
33. In K.R. Indira, 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.
34. Insofar as the present reference is concerned, the debate broadly
centres around clause (c) of the proviso to Section 138 of the NI
Act. The 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.
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 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.
36. A complaint filed before the 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. 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 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.
37. We, therefore, do not approve the view taken by this Court in
Narsingh Das Tapadia and so also the judgments of various High
Courts following Narsingh Das Tapadia 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.
38. Rather, the view taken by this Court in Sarav Investment &
Financial Consultancy 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 Consultancy 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."
23. This Court finds that the law has been well settled by the
aforesaid judgements that the cause of action for filing a
Complaint under Section 138 of the Negotiable Instruments Act
cannot arise before expiry of 15 days from the date of service of
notice upon the accused.
24. In view of the aforesaid judgments passed by the Hon'ble
Supreme Court, this Court finds that in absence of the specific
date regarding service of notice, the legal notice sent on
29.02.2008 under registered cover would be deemed to be
served upon the petitioner on 30.03.2008 i.e. only after expiry of
30 days from the date of issuance of the legal notice and the
cause of action for filing the Complaint would have arisen on
expiry of 15 days thereafter, but the Complaint in the present
case was filed on 18.03.2008. Accordingly, the complaint itself
was not maintainable being premature.
25. This Court is of the considered view that both the learned
courts below have erred in holding that the notice dated
29.02.2008 was presumed to have been served by 02.03.2008
and accordingly the Complaint was maintainable on 18.03.2008.
Accordingly, this Court holds that the Complaint filed before
expiry of the statutory period 15 days from the date of deemed
service of the demand notice upon the petitioner regarding the
dishonour of the cheque was premature in view of the fact that
the cause of action for filing the Complaint had not arisen on
18.03.2008 and therefore, the Complaint itself was not legally
maintainable.
26. In view of the aforesaid findings, both the impugned
judgments passed by the learned courts below are hereby set
aside and the petitioner is acquitted from the accusation
thereunder and he is discharged from the liability of his bail
bond.
27. So far as the right of the Complainant / Opposite Party
No.2 to file a fresh Complaint is concerned, the Complainant is
at liberty to avail his remedy in accordance with law in the light
of the observations made by the Hon'ble Supreme Court in
Paragraph No. 41 of the Judgment passed in the case of
Yogendra Pratap Singh (supra).
28. Accordingly, with the aforesaid findings and
observations, the present criminal revision petition is hereby
allowed.
29. Pending interlocutory application, if any, is dismissed as
not pressed.
Appreciation for Amicus Curiae and Payment:
30. This Court observes that vide order dated 08.11.2019, Ms.
Sunita Kumari, Advocate was appointed as Amicus Curiae in
this case by this Court. This Court records its appreciation for
the valuable assistance accorded by the learned Amicus Curiae
in final disposal of this case. The Secretary, Jharkhand High
Court Legal Services Committee is directed to ensure that the
legal remuneration of the learned Amicus Curiae is duly paid
to her within a period of 4 weeks upon submission of bills by
her.
31. Office is directed to send back the lower court records to
the learned court concerned.
32. Let a copy of this Judgment be communicated to the
learned court concerned through FAX/e-mail.
33. Let a copy of this Judgment be also communicated to the
Secretary, Jharkhand High Court Legal Services Committee.
(Anubha Rawat Choudhary, J.)
Saurav/
