Manoj Kumar Nag vs The State Of Jharkhand
2021 Latest Caselaw 2317 Jhar

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        IN THE HIGH COURT OF JHARKHAND AT RANCHI

                          Cr. Rev. No. 827 of 2012

       Manoj Kumar Nag, S/o :- Mangal Munda, Resident of
       Churitola, P.O. and P.S. Kanke, District-Ranchi
                                           ...     ...    ...      Petitioner
                              Versus
       1. The State of Jharkhand ...         ...     Respondent
       2. Smt. Chaitali Dutta, w/o Jayanta Dutta, C/o Dilip Kumar
          Singh, R/o J. P. Marg, P.O. + P.S. - Gonda, Dist.- Ranchi
                                           ...     ... Opposite Parties
                                ---

CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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       For the Petitioner           : Mrs. Vani Kumari, Advocate
       For the State                : Mrs. Niki Sinha, A.P.P.
       For the O.P. No. 2           : Mr. S.K. Laik, Advocate

                      Through Video Conferencing

16/13.07.2021

1. Heard Mrs. Vani Kumari, learned counsel appearing on behalf of the petitioner.

2. Heard Ms. Niki Sinha, learned A.P.P. appearing on behalf of the opposite party- State.

3. Heard Mr. S. K. Laik, learned counsel appearing on behalf of the opposite party no. 2.

4. This criminal revision is directed against the judgment dated 24.05.2012 passed by the learned Additional Judicial Commissioner XVI, Ranchi in Criminal Appeal No. 78 of 2011 whereby the learned Additional Judicial Commissioner XVI has dismissed the Criminal Appeal which was filed against the judgment dated 27.04.2011 passed by the learned Judicial Magistrate, 1st Class, Ranchi in connection with C-815/2008= T.R. No. 1369 of 2011 whereby the learned Judicial Magistrate, 1st Class, has convicted the petitioner under Section 138 of the Negotiable Instrument Act and sentenced him to undergo

simple imprisonment for six months and he has been further ordered to pay compensation of Rs. 2,00,000/- to the complainant under Section 357(3) Cr. P.C. Argument on behalf of the petitioner

5. Learned counsel for the petitioner submits that the impugned judgements are perverse, in as much as, there is no finding recorded regarding service of notice in connection with bouncing of the cheques upon the petitioner although the same was sent by registered post on 04.03.2008. She also submits that the petitioner in his statement under Section 313 had denied the service of notice. The learned counsel submits that at best the service of notice could have been presumed to have been served only upon expiry of 30 days from its dispatch and thereafter, 15 days' time was required to be given to the petitioner to respond to the demand notice. She submits that the complaint case was filed on 10.04.2008 and as per the timeline, the complaint itself was premature. She submits that in the aforesaid circumstances, the conviction of the petitioner under section 138 of Negotiable Instruments Act, 1881, cannot be sustained and calls for interference in revisional jurisdiction. Argument on behalf of the Opposite Parties

6. Learned counsel appearing on behalf of the opposite party no. 2, while opposing the prayer, has submitted that there is no illegality or perversity in the impugned judgements and there is a little scope for interference in revisional jurisdiction.

7. The learned counsel for the opposite party no. 2, relied upon the order passed by the Hon'ble Supreme Court reported in (2007) 14 SCC 750 (C. C. Alavi Haji Vs.

Palapetty Muhammed and Another) on the point of service of notice.

8. Learned counsel appearing on behalf of the opposite party-State has also supported the arguments advanced on behalf of the opposite party no. 2.

Rejoinder arguments of the petitioner

9. At this, the learned counsel for the petitioner submits that the aforesaid judgement of the Hon'ble Supreme Court was relating to return of unserved notice, however, in the present case there is no such case made out by the complainant, rather both the learned courts below have not recorded any finding regarding service of notice. She further submits that the timelines in case of Section 138 of Negotiable Instruments Act are to be strictly followed and the complaint case has been filed premature if deemed service of notice upon expiry of 30 days from its dispatch is taken into consideration even at this stage. It is reiterated that under aforesaid circumstances, the conviction of the petitioner cannot be sustained in the eyes of law.

Findings of this Court

10. After hearing the learned counsel for the parties and considering the materials available on record, this court finds that as per the prosecution story the complainant wanted to purchase a land and, in this connection, she saw the land and thereafter she paid Rs. 2 lacs (One lac cash and one lac by cheque) to the petitioner who assured that within six months he will perform registry of 08 decimals land in the name of complainant. After expiry of six months when accused had not performed registry of the land and on repeated demand of refund of money the petitioner issued four cheques each valued Rs. 50,000/- in

favour of complainant for returning of her advance money.

11. Complainant deposited the cheques in her account but all the four cheques were dishonored on 08.02.2008 due to "insufficient fund". Complainant informed the petitioner regarding bouncing of all cheques but accused did not pay her money back then complainant sent a legal notice through her advocate dated 03.03.2008 which was sent at the address of the petitioner on 04.03.2008 by registered post. In spite of that when the petitioner did not pay the amount of the cheques to the complainant, she filed case under Section 138 of the Negotiable Instruments Act on 10.04.2008. After enquiry a prima facie case under Section 138 of the Negotiable Instruments Act was said to have been made out against the petitioner who was summoned to face trial in this case.

After appearance of the petitioner substance of accusation under Section 138 of the Negotiable Instruments Act was explained to which he denied and claimed to be tried. Evidence on behalf of the complainant was adduced. Statement of the petitioner under Section 313 Cr. P.C. was recorded and the petitioner inter alia denied service of legal notice regarding bouncing of cheques.

12. Defence evidence was also produced denying the liability and it was argued that the cheques were issued as security and not in discharge of any debt but this argument of the defence was rejected by both the learned courts below inter alia by referring to the legal presumption regarding drawing of cheque.

13. The only question which is required to be answered in the present case is as to whether on the date of filing of the complaint case under section 138 of the Negotiable

Instruments Act, 1881, the cause of action had crystalized or the complainant itself was pre-mature?

14.The learned trial court found that the prosecution had proved the four cheques of the accused as Exhibits-1, 1/1, 1/2 and 1/3 and also proved the cheque return memo of the four cheques dated 08.02.2008 as Exhibit-2. The prosecution also proved a legal notice regarding bouncing of cheque dated 03.03.2008 (i.e. Exhibit-3). The prosecution also proved the certificate of post-master, Ranchi University Post Officer dated 07.01.2009 as Exhibit-4 regarding dispatch of legal notice to the petitioner through registered cover i.e., RL No. 1746 dated 04.03.2008. However, there is no averment regarding service of legal notice either in the complaint petition or in the evidences on record and accordingly, nothing has been recorded in this regard by the learned trial court. The learned trial court while convicting the petitioner recorded its ultimate finding at Para-13 as follows: - "In this case .......................... the date of cheque return memo as shown on Exhibit-2 is 08.02.08. Perusal of carbon copy of legal notice (Exhibit-3) and certificate of Postmaster, Ranchi University Post Office shows that complainant has sent a legal/demand notice to the accused on 04.03.08 i.e. within 30 days of receiving information regarding bouncing of the cheques. Perusal of case record shows that complainant has filed this complaint case on 10.04.08. Therefore, this complaint case has been filed within time limit as prescribed u/s 142 of N.I. Act for the prosecution of 138 of N.I. Act. Therefore, it is clear that complainant has complied all the necessary requirements as required under N.I. Act to launch a prosecution u/s 138 of N.I. Act."

15.This Court finds that the learned trial court while mentioning the material dates regarding cheque bouncing and sending of legal notice and the cause of action to file the case has recorded that return memo is dated 08.02.2008, legal notice was sent on 04.03.2008 i.e. 30 days

of receiving information regarding bouncing of cheques and the complaint case having been filed on 10.04.2008 was held to be filed within time line as prescribed under Section 142 of the Negotiable Instruments Act and has complied with all the necessary requirements as required under Negotiable Instruments Act.

16.This court is of the considered view that the learned trial court completely failed to consider that the cause of action for filing a complaint case under Section 138 of the N.I. Act is not counted from the date of dispatch of legal notice, but is counted from expiry of 15 days from the date of service of legal notice. Thus, the timeline for filing the case, even if it is assumed that the legal notice having been sent through registered cover on 04.03.2008 and not return back unserved or returned back for any other reason , the date of service would be 03.04.2008 i.e expiry of 30 days from dispatch of the legal notice and thereafter 15 days was required to be counted i.e., till 18.04.2008 for the cause of action to mature in order to file a complaint case under section 138 of the Negotiable Instruments Act, 1881. However, in the instant case, the complaint was filed on 10.04.2008 and thus, the cause of action for filing the complaint case under Section 138 of the N.I. Act had not matured on 10.04.2008, which is the date of filing the complaint case. This Court also finds that the learned trial court has not recorded any finding in connection with the service of legal notice much less of finding of deemed service of notice after expiry of the 30 days period from dispatch of legal notice under registered cover.

17.The learned appellate court has recorded its finding in connection with cause of action of filing the case under Section 138 of the N.I. Act at paragraph-8, which is quoted

hereinbelow for ready reference: -

"At the very outset, I would like to mention here that the signature on the cheque of the accused is an admitted fact. The facts admitted need not be proved. When issuance of cheque is an admitted fact, in such case the defence is duty bound to rebut it as to in which circumstances he has issued the cheque, showing any other purpose then the debt or liability U/s 139 of the N.I. Act there shall be presumption that the cheque has been issued against the debt or liability. DW 1 has deposed that Rs. 1 lakh was returned to the complainant but there is no any documentary evidence in support of his contention. Oral evidence requires to be supported with document in a particular case where there is transaction between the parties. The issuance of cheque and its presentation before the bank cannot be denied. Cheque memo return Ext. 2 shows that the cheques have been dishonoured for insufficient of fund. Legal notice has also been sent to the accused as per Ext. 3. There is no denial that the address given on the registered post is incorrect. Therefore, it shall be presumed that the accused has received the legal notice which has been sent within 30 days of receiving information regarding bouncing of the cheques. Thereafter, complaint case has been filed after arising cause of action. Therefore, all the formalities required u/s 138 of the N.I. Act has been well proved by the prosecution. Therefore, in my opinion the learned court below has considered all the aspects meticulously in proper perspective and has committed no manifest error in coming to the finding of the guilt. As such the impugned judgment and order of conviction and sentence does not require any interference."

18.The learned appellate court recorded that legal notice was sent to the accused as per Exhibit-3. There was no denial that the address given on the registered post is correct and therefore held that it shall be presumed that the accused had received the legal notice which has been sent within 30 days of receiving information regarding bouncing of the cheques and thereafter, complaint case had been filed after arising cause of action.

19.Although the learned appellate court applied the concept of deemed service of notice sent under registered cover and not returned back unserved or otherwise but did not indicate the date on which such notice was deemed to have been served and it simply held that the legal notice

is deemed to have been served. While calculating the time line in filing the case, the learned appellate court held that the legal notice was sent within 30 days of receiving information regarding bouncing of cheque and held that the complaint was filed after arising of the cause of action. The appellate court neither gave any finding regarding the date of deemed service of notice nor gave any finding that inspite of service of notice the petitioner failed to pay the amount within 15 days from the date of service of legal notice and therefore the complaint case was maintainable.

20.The learned counsel for the opposite party No.-2 has relied upon an order dated 14.02.2007 passed by the Hon'ble Supreme Court reported in (2007) 14 SCC 750. Upon perusal of the said order, this Court finds that the same is a reference for consideration of question involved in the said case to a Larger Bench. The reference was ultimately answered in the judgement dated 18.05.2007 reported in (2007) 6 SCC 555. In the said case, the notice could not be served upon the accused as it was returned unserved with an endorsement of the postal peon "out of station" and the complainant did not allege that the service of notice was deliberately avoided by the accused or the postal endorsement of the postal peon on the envelope was wrongly obtained. The question which arose for consideration was, whether in absence of any averments made in the complaint petition that the accused had a role to play in the matter of non-receipt of legal notice; or that the accused deliberately avoided service of notice, the same could have been entertained keeping in view the earlier decision reported in (2006) 6 SCC 456. The facts of the present case are totally different. The present case does not deal with

return or non-receipt of legal notice by the petitioner with or without any endorsement, but the present case deals with dispatch of legal notice by registered cover and its deemed service upon the petitioner and the date on which the cause of action to file the complainant case under section 138 of N.I. Act would arise. Thus, the judgement relied upon by the learned counsel for the complainant does not help the complainant in any manner.

21.This Court finds that there is no material on record regarding service of legal notice dated 03.03.2008 dispatched by registry on 04.03.2008 upon the petitioner and it is not the case of the complainant that the legal notice was returned unserved or returned for any other reason. This court is also of the considered view that presumption regarding service of notice sent through registered cover can be drawn only upon expiry of 30 days from the date of dispatch of notice as has been held by the Hon'ble Supreme Court in the judgment reported in (2008) 13 SCC 689 (Subodh S. Salaskar vs. Jayprakash M. Sah and Another). 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.In the judgment passed by the Hon'ble Supreme Court

reported in (2014) 10 SCC 713 (Yogendra Pratap Singh vs. Savitri Pandey and Another) it has been held by the Hon'ble Supreme Court at Paragraphs- 30, 31, 36, 37 to 38 which reads 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."

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 judgement that the cause of action for filing a complaint case under Section 138 of the N.I Act could not arise prior to expiry of 15 days from the date of service of legal notice on the accused.

24.This Court also finds that even if the best case of the Complainant is taken into consideration, then the date of dispatch of notice by the complainant in 04.03.2008 (through registered cover), the date of presumed/deemed service of legal notice upon the petitioner would by 03.04.2008 (30 days from dispatch of legal notice) and 15 days from the date of service of notice would expire only on or about 18.04.2008 and present complaint case has been filed on 10.04.2008. This Court finds that in the light of the judgment passed by the Hon'ble Supreme Court reported in (2014) 10 SCC 713 (Yogendra Pratap Singh - versus- Savitri Pandey and another), the complaint filed by the complaint is pre-mature as the cause of action for filing the complaint case under Section 138 of the Negotiable Instruments Act, 1881 had not crystalised on 10.04.2008 and accordingly, the complaint itself was pre- mature and hence not maintainable.

25.Consequently, the condition precedent for filing the case under Section 138 of the Negotiable Instruments Act,

1881, having not been satisfied, the complaint itself was not maintainable on the day it was filed and accordingly, the petitioners could not have been convicted under the said Section. The question of any presumption regarding existing debt under Section 139 of the Negotiable Instruments Act, 1881 also could not arise as the complaint itself was not maintainable. Accordingly, the present petition is hereby allowed. The impugned judgements and sentence passed by the learned courts below are hereby set aside.

26.This court also finds that in the aforesaid judgement reported in (2014) 10 SCC 713, the Hon'ble supreme court while holding that the complaint as pre-mature also observed in Para-41 of the said judgement itself that the remedy for the Complainant was to file a fresh complaint and satisfy the court regarding sufficient cause for delay.

27.The present revision petition is allowed and the parties may proceed as per law.

28.The petitioner is discharged from the liability of the bail bonds.

29.Pending interlocutory applications, if any, are closed.

30.Let the lower court records be sent back to the court concerned.

31. Let this order be communicated to the learned court

below through FAX / e-mail.

(Anubha Rawat Choudhary, J.) Binit/