Jharkhand High Court
Rahul Raj @ Rahul Son Of Late Bharat ... vs The State Of Jharkhand on 20 September, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Revision No. 223 of 2012
Rahul Raj @ Rahul son of Late Bharat Prasad, resident of C/o
Moni Prasad, Qr. No. DB-150, near farm house, RAC Farm
Gate, Birsa Agricultural University, P.O. + P.S.- Kanke, District-
Ranchi ... ... Petitioner
-Versus-
1. The State of Jharkhand
2. Santosh Prasad son of Sahdeo Prasad, Resident of First
Floor, Lalpur, Post Office, P.O. + P.S.- Lalpur, District-
Ranchi ... ... Opp. Parties
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Suraj Kumar, Advocate
For the State : Ms. Mahua Palit, A.P.P.
For the O.P. No.2 : None
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Through Video Conferencing
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JUDGMENT
08/C.A.V. on 02.07.2021 Pronounced on 20.09.2021
Heard Mr. Suraj Kumar, the learned Advocate appearing
on behalf of the petitioner.
2. Heard Ms. Mahua Palit, the learned A.P.P. appearing on
behalf of the Opposite Party No.1-State.
3. None appeared on behalf of the Opposite Party No.2.
4. The present criminal revision is directed against the
Judgment dated 21.03.2012 passed by the learned Judicial
Commissioner-IX, Ranchi in Criminal Appeal No. 138 of 2011
whereby and whereunder the learned appellate court
confirmed the conviction of the petitioner under Section 138 of
the Negotiable Instruments Act, but set aside the part of the
order of sentence passed by the learned trial court whereby and
whereunder the petitioner was directed to pay a compensation
amount of Rs.19,50,000/- under Section 357 of Cr.P.C. and
remanded back the case to the learned trial court to rehear the
parties on the point of sentence and pass the order in terms of
the law laid down by the Hon'ble Apex Court in the case of R.
Vijjayan -vs- Bebi reported in AIR 2000 SC 528 and also in
view of the provision contained under Section 357(3) of Cr.P.C.
and the criminal appeal was partly allowed and partly
dismissed.
5. The learned trial court vide Judgment of conviction and
the order of sentence dated 12.08.2011 passed by the learned
Judicial Magistrate, 1st Class, Ranchi in Complaint Case No. 333
of 2006 / T.R. No. 461 of 2011 had convicted the petitioner for
the offence under Section 138 of the Negotiable Instruments Act
and had sentenced him to undergo Simple Imprisonment for
one year and fine of Rs.2,000/- and in case of default in
payment of fine, to undergo Simple Imprisonment for further
one month and had further directed the petitioner to pay
compensation of Rs.19,50,000/- to the Complainant under
Section 357 of Cr.P.C. However, the learned trial court held that
Section 420 of the Indian Penal Code is not attracted and
established in the present case.
Arguments on behalf of the petitioner
6. The learned counsel appearing on behalf of the petitioner
relied upon the following judgments:- 2012 (1) JLJR 220
Prahlad Rai Agrawal -vs- The State of Jharkhand, 2012 (1)
JLJR 48 Hari Ram Sariwala @ Hari Ram -vs- The State of
Jharkhand, 2011 (3) JLJR 311 Shahid Ali -vs- State of
Jharkhand & Anr. and 2008 (2) JLJR 22 (SC) K. Prakashan -vs-
P.K Surenderan.
7. The learned counsel submitted that the learned courts
below have not properly appreciated the evidences on record
and the presumption, that the cheque was drawn against a
liability, has been duly rebutted by the petitioner in the light of
preponderance of probability. He submitted that the demand
cheques were issued by the petitioner for the purpose of
admission in Law College, but the same were misused by the
complainant and there was no legal debt for which the cheques
were issued.
8. He further submitted that even the timeline prescribed
for filing a case under Section 138 of the Negotiable
Instruments Act has not been satisfied in the present case and
the case itself was pre-matured. He submitted that notice for
cheque bouncing was issued on 17.02.2006 and the postal
receipt has been exhibited, but there is no document to show
the service of notice and accordingly, at best, the deemed
service of notice could be taken as 18.03.2006, but the present
case was filed on 17.03.2006. He submitted that even after
deemed service of notice, the petitioner has time of 15 days to
respond to the legal notice or to pay the same. He submitted
that in view of the aforesaid list of dates, the case itself was
filed pre-matured and accordingly, the conviction of the
petitioner under Section 138 of the Negotiable Instruments Act
cannot be sustained in the eyes of law.
Arguments on behalf of the State
9. The learned counsel for the opposite party-State opposed
the prayer and submitted that the impugned judgments of
conviction and sentence do not call for any interference in
revisional jurisdiction as they do not suffer from any illegality
or perversity.
Findings of this Court
10. 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 17.03.2006, the Complainant namely, Santosh Prasad
presented a Complaint being Complaint Case No. 333 of 2006
alleging inter-alia that the petitioner was known to him
obtained a sum of Rs.20 lacs through him for business to be
returned as early as possible and accordingly, issued three post-
dated cheques bearing no. 136432 of Federal Bank Ltd. dated
23.11.2005 for Rs.5 lacs and two cheques were issued for
Rs.7,25,000/- each on Ranchi-Chhetriya Gramin Bank bearing
nos. 449809 and 449810 dated 24.01.2006 and 30.01.2006
respectively in the name of the Complainant. It was assured to
the Complainant that the cheques shall be honoured on the date
of presentation. It was further stated that the Complainant was
guarantor to the transaction and as such, he had the right to
collect the legally enforceable debt. All the cheques were
presented with the banker for their realization on the due dates
after getting prior affirmation from the petitioner, but all the
cheques were dishonoured by the banker of the petitioner. The
cheques for Rs.5 lacs was dishonoured on the ground of
insufficient fund in the account of the petitioner and the two
cheques of Rs.7,25,000/- were twice dishonoured i.e. on
25.01.2006 and 02.02.2006 on the ground of account closed as
disclosed in the return memo. The Complainant informed
about the status of the three cheques to the petitioner, but the
petitioner did not take appropriate steps to discharge the said
liability. Thereafter, the Complainant issued legal notice in the
name of the petitioner on 17.02.2006 requesting him to
discharge the cheque amounts. The petitioner did not discharge
the said liability of the cheques. Thereafter, the Complainant
preferred the Complaint Petition on 17.03.2006.
11. After enquiry, on 18.07.2006, process under Section 138 of
the Negotiable Instruments Act and Section 420 of the Indian
Penal Code was issued against the petitioner and after
appearance of the petitioner and recording of evidence before
charge on 08.04.2009, the charge under Section 138 of the
Negotiable Instruments Act and Section 420 of the Indian Penal
Code was framed against the petitioner which was read over
and explained to him in Hindi to which he pleaded not guilty
and claimed to be tried.
12. In course of trial, the Complainant examined two
witnesses in support of his case. C.W.-1 is Santosh Prasad who
is the Complainant himself and C.W.-2 is Himachal Chouhan.
The Complainant exhibited Cheque No.136432 as Exhibit-1,
Cheque No.449809 as Exhibit-1/1, Cheque No.449810 as
Exhibit-1/2, Cheque Return Memo dated 18.01.2006, 25.01.2006,
25.01.2006, 02.02.2006 and 02.02.2006 as Exhibit-2, 2/1, 2/2, 2/3
and 2/4, Demand Notice as Exhibit-3, postal receipt as Exhibit-
4, hand note as Exhibit-5 and signature of D.W.-2 on bail bond
as Exhibit-6.
13. On 17.09.2009, the statements of the petitioner were
recorded under Section 313 of Cr.P.C. wherein the petitioner
denied the allegations and claimed false implication in the case.
The petitioner examined two witnesses in his defence. D.W.-1 is
Rahul Raj who is the accused-petitioner himself and D.W.-2 is
Akash Sinha. A pamphlet advertising admission in private
colleges was identified and marked as 'X'. The defence
exhibited Letter dated 24.05.2005 issued by Smart India as
Exhibit-A, receipt showing receiving of Rs.50,000/- and three
cheques as Exhibit-B, a document regarding information of
theft of three cheques as Exhibit-C and signature of D.W.-2 on
Exhibit-C as Exhibit-C/1.
14. The learned trial court considered the oral and
documentary evidences adduced on behalf of the parties and
the arguments advanced on their behalf and recorded its
findings in Paras-14 and 20 which read as under :
"14. Heard both the parties and perused the material on
record. It appears from the perusal of the three cheques that they
were issued in the name of the complainant. The cheques are
under the signatures of the accused, factum of three cheques
and signature of the accused has been duly admitted by both the
parties. It is not in dispute that three cheques have been
deposited with the bank within the period of its validity i.e. the
cheque is of date 23.11.05, 24.01.06 and 30.01.06. All the
cheques were deposited and subsequently all the three cheques
were dishonoured by the bank of the accused and returned along
with three separate return memos exhibited before the court as
Ext-2, 2/1 and 2/2 respectively. It is also admitted fact that the
three cheques were dishonoured whereas one of the cheques was
dishonoured on the ground of insufficient fund other two
cheques were dishonoured since the accused closed the account.
It is established law that when the cheque is dishonoured on the
ground of insufficient fund or closure of the account prior to the
deposit of the cheque it is presumption under law that the
cheque was issued to discharge legally enforceable debt or
liability of the person who had issued the cheque if otherwise
contrary is proved as defined u/s 139 of N.I. Act.
20. It appears from perusal of the oral testimony of DW-1
and DW-2 along with exhibits filed before the court that defence
has made an attempt to establish that the cheque were issued as
security amount for getting admission in law college at Pune.
However, I find that the defence has failed to contradict or rebut
the presumption laid down u/s 139 of N.I. Act. In this case also
considering the facts and circumstances above discussed I find
that the complainant himself has admitted that he was
guarantor to the money which was advanced to the accused.
When the accused failed to discharge his liability, the
complainant being the guarantor, to the said money deposited
the given cheques in the bank for its encashment. The deposited
cheques issued by the accused in his favour of the complainant
and safely be presumed to have been issued in discharge of legal
debt or liability. The complainant is in other words holder in
due course of the said. It further appears from the perusal of the
court record that after dishonor of the cheques legal notice were
issued within stipulated period of time and further same has
been admitted by the defence. It has also been established by the
prosecution that after receipt of the legal notice accused failed to
discharge his liability hence the complainant instituted this case
within stipulated period of 30 days of issue of notice."
15. The learned trial court convicted the petitioner for the
offence under Section 138 of the Negotiable Instruments Act
and sentenced him to undergo Simple Imprisonment for one
year and fine of Rs.2,000/- and in case of default in payment of
fine, to undergo Simple Imprisonment for further one month
and further directed the petitioner to pay compensation of
Rs.19,50,000/- to the Complainant under Section 357 of Cr.P.C..
However, the learned trial court held that Section 420 of the
Indian Penal Code is not attracted and established in the
present case.
16. The learned appellate court also considered the evidences
available on record and the arguments advanced on behalf of
the parties recorded its findings in Paras-11, 12, 14, 15 and 21 of
its judgment. As per Para-11, the learned appellate court was of
the view that the three cheques were issued by the petitioner in
favour of the complainant in lieu of the amount of Rs.20 lacs
which was received by the petitioner from Jai Kishore and Dr.
K.D. Sharma and it comes within the purview of the
explanation of Section 138 of the Negotiable Instruments Act as
debt or liability which is legally enforceable and the
complainant can be said to be the holder-in-due course of the
cheques and in view of the proviso to Section 138(b) of the
Negotiable Instruments Act, the complainant is entitled to file
the complaint case.
17. The learned appellate court in Para-12 recorded that
C.W.-1 in Para-5 deposed that he sent a demand notice through
his lawyer (Ext.-3) on 17.02.2006 and he also produced the
postal receipt (Ext.-4), but he has not been cross-examined on
the point of service of notice. On the other hand, postal receipt
(Ext.-4) shows that a notice was sent through registered post to
the petitioner on 17.02.2006 and Ext.-3 shows that a legal notice
was sent to the petitioner on 17.2.2006 and this fact has been
corroborated by C.W.-1 in Para-5 and he has not been cross-
examined on this point. On the point of service of notice, the
learned appellate court recorded that D.W.-1 during cross-
examination in Para-11 admits that the address written upon
Ext.-3 (legal notice and his name and address are correct and
since summon was properly addressed and it was sent through
registered post, it will be treated as a valid service and so, the
complainant has complied with the provision under Section
138(b) of the Negotiable Instruments Act regarding the service
of summons before filing the case.
18. On the point of presentation of the cheques, the learned
appellate court in Para-14 recorded that the three cheques are
marked as Ext.-1, 1/1, ½ and 5 bank slips have been marked as
Ext.-2, 2/1, 2/2, 2/3 and 2/4 which indicates that Cheque
No.136432 dated 23.11.2005 for Rs.5 lacs was presented before
the Federal Bank twice, firstly, on 18.01.2006 and secondly on
25.01.2006, but the cheque was returned twice and the reason
assigned was fund insufficient. Similarly, Ext.-2/2 shows that
Cheque No.0449809 for Rs.7,25,000/- was presented before
Kshetriya Gramin Bank, Ranchi, Bariatu Branch, but the same
was not encashed and the reason assigned was the account was
closed. Similarly, Ext.-2/3 shows that Cheque No.0449810 was
presented before Kshetriya Gramin Bank on 02.02.2006 and the
same was dishonoured on the ground that the account was
closed. Again on 02.02.2006, Cheque No.0449809 was presented
before the Khetriya Gramin Bank on 02.02.2006 and the same
was not honoured and the reason assigned was account was
closed. So, in view of the documentary evidence, it can be
safely said that all three cheques were presented before the
respective banks, but all the cheques were dishonoured, one on
the ground that fund was not sufficient and second on the
ground that account was closed.
19. On the point of denial of the signature by the petitioner
appearing on Exhibit-5, the learned appellate court recorded in
Para-15 that the signatures appearing on Ext.-1, 1/1 and ½ and
the signature of the petitioner appearing on Ext.-5 are in the
same style and from plain reading, it appears that the
signatures upon both the documents are by the same person.
20. On the point of not putting the question regarding the
contents of Exhibit-5 while examining the petitioner under
Section 313 of Cr.P.C., the learned appellate court recorded in
Para-21 that of course no specific question was asked with
regard to the existence of Rxt.-5, the petitioner was aware of the
fact that the complainant has placed reliance upon Ext.-5 and
that's why he cross-examined C.W.-1 (complainant) on this
point and when he examined himself as witness, he gave a
specific evidence on this point and denied his signature upon
Ext.-5 and so, no prejudice is caused to the petitioner, if no
question was asked on this point.
21. The learned appellate court confirmed the conviction of
the petitioner under Section 138 of the Negotiable Instruments
Act., but set aside the part of the order of sentence passed by
the learned trial court whereby and whereunder the petitioner
was directed to pay a compensation amount of Rs.19,50,000/-
under Section 357 of Cr.P.C. and remanded back the case to the
learned trial court to rehear the parties on the point of sentence
and also in view of the provision contained under Section
357(3) of Cr.P.C. and the criminal appeal was partly allowed
and partly dismissed.
22. This Court finds that C.W.-1 is the Complainant of the
case and he deposed that the petitioner was known to him for
the last eight years and elder brother of the petitioner namely,
Munni Prasad works at Agricultural University. He alongwith
Jai Kishore Singh and Dr. K.D. Sharma gave Rs. 20 lacs to the
petitioner at his instance. The money was paid to the petitioner
at his instance by K.D. Sharma and Jai Kishore Singh. The
petitioner had issued the cheque drawn on Federal Bank and
thereafter two cheques for a sum of Rs.7,25,000/- were also
issued upon Ranchi Kshetriya Gramin Bank. He exhibited all
the three cheques as Exhibits-1, 1/1 and 1/2 respectively. He
further deposed that he had deposited the said cheque in
Allahabad Bank. It was disclosed in the return memo that the
cheques were dishonoured due to insufficient fund. First time
the cheque was deposited on 18.05.2006. Subsequently, the
cheques were again deposited with the banker on 25.01.2006.
Return memo dated 18.01.2006 and 25.01.2006 were issued to
the complainant and the same has been exhibited as Exhibits-2
and 2/1 respectively. Cheque No.0449809 was return on
25.01.2006 disclosing that the account was closed. The cheque
was again deposited with the banker at the instance of the
petitioner, but the result remained same. The Complainant
further deposed that at the time of taking money, the petitioner
had issued hand note which bears his handwriting and
signature which has been marked as Exhibit-5.
23. Demand notice dated 17.02.2006 (Exhibit-3) was sent to
the petitioner through his Advocate through registered post
bearing postal receipt (Exhibit-4). However, there is no
evidence regarding the date on which the legal notice was
served upon the petitioner. The complainant deposed that ever
after issuance of notice, the petitioner did not pay the cheque
amounts and therefore, the present case was instituted. The
Complainant presented the Complaint Petition on 17.03.2006.
24. This Court finds that the petitioner had issued Cheque
No. 136432 dated 23.11.2005 of Federal Bank Ltd. for Rs.5 lacs
and Cheque No. 0449809 dated 24.01.2006 and Cheque No.
0449810 dated 30.01.2006 of Ranchi-Chhetriya Gramin Bank for
Rs.7,25,000/- each in the name of the Complainant. The
Complainant presented all the three cheques before the
respective banks within their respective validity periods, but all
the cheques were dishonoured. Thereafter, the Complainant
sent a legal demand notice to the petitioner on 17.02.2006
through registered post presented the Complaint Petition on
17.03.2006. This Court finds that both the learned courts below
have failed to consider that there is no evidence on record to
show that the legal notice dated 17.02.2006 sent under
registered post was ever served upon the petitioner.
25. This Court is of the view that the presumption regarding
service of demand notice sent even 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.
26. The Hon'ble Supreme Court in its Judgment passed in the
case of Yogendra Pratap Singh vs. Savitri Pandey and Another
reported in (2014) 10 SCC 713 has dealt with the law regarding
deemed service of notice upon the accused 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."
27. This Court finds that the law has been well settled by the
aforesaid judgment 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.
28. In view of the aforesaid judgment, this Court finds that in
absence of the specific date regarding service of notice, the
demand notice sent on 17.02.2006 under registered post would
be deemed to be served upon the petitioner on 18.03.2006 i.e.
only after expiry of 30 days from the date of issuance of the
demand notice and the cause of action for filing the Complaint
would have arisen on expiry of 15 days thereafter i.e. only after
02.04.2006 and the Complaint could have been filed thereafter,
but the Complaint in the present case was filed on 17.03.2006.
29. This Court is of the considered view that both the learned
courts below have erred in holding that the Complaint was
maintainable. 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 cheques was premature in view
of the fact that the cause of action for filing the Complaint had
not arisen on 17.03.2006 and therefore, the Complaint itself was
pre-matured and was not legally maintainable.
30. In view of the aforesaid findings, both the impugned
judgments passed by the learned courts below are set aside and
the petitioner is acquitted on the ground that the complaint
itself was pre-mature and consequently, he is discharged from
the liability of his bail bond.
31. So far as the right of the Complainant 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).
32. Accordingly, with the aforesaid findings and
observations, the present criminal revision petition is hereby
allowed.
33. Pending interlocutory application, if any, is closed.
34. Office is directed to send back the lower court records to
the court concerned.
35. Let a copy of this Judgment be communicated to the court
concerned through FAX/e-mail.
(Anubha Rawat Choudhary, J.)
Binit/
