Sunil Kumar Bhagat vs The State Of Jharkhand
2024 Latest Caselaw 7607 Jhar

Jharkhand High Court

Sunil Kumar Bhagat vs The State Of Jharkhand on 2 August, 2024

 IN THE HIGH COURT OF JHARKHAND AT RANCHI
         Criminal Revision No.1504 of 2015
Sunil Kumar Bhagat, S/o Late Sheopujan Bhagat, Resident of
Gandhi Road, P.O. & P.S.-Bank More, District-Dhanbad, State-
Jharkhand                             ...... Petitioner/Complainant

                       Versus
1. The State of Jharkhand
2. Sunil Kumar Gupta, S/o Gautam Prasad Gupta, Resident of 91,
   Debendra Chandra Dey Road, Kolkata, P.S.-Etali, Kolkata-15
   (West Bengal)
                                    ...... Opposite Party(accused)

                             .....
For the Petitioner     : Mr. Ravi Prakash Mishra, Advocate
For the State          : Addl.P.P
For the O.P. No.2: Mr. Arun Kumar, Adv.
                 ----------
                 PRESENT
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
                   -----
                 JUDGMENT

C.A.V.On 02.05.2024 Pronounced On: 02/ 08 /2024

1. The instant Criminal Revision is directed against judgment of

acquittal dated 07.09.2015 passed by learned Additional

Sessions Judge-12, Dhanbad in Criminal Appeal No. 78 of

2014, whereby and whereunder, the conviction and sentence of

the opposite party No.2 passed by learned trial court for the

offence under section 138 of Negotiable Instrument Act has

been reversed and set aside and appeal was allowed.

2. Factual matrix of the case is that the petitioner(complainant)

entered into an agreement with the opposite party no.2, who was

Criminal Revision No.1504 of 2015

dealing with the business of plastic materials to supply quality

goods and thereby advanced Rs.90,000/- in the month of

September, 2007 but the opposite party No.2 did not supply the

materials as agreed between the parties and upon persistent

demand of the advance money, the opposite party No.2 issued

two cheques bearing No.310525 dated 07.12.2007 of

Rs.45,000/- and another cheque bearing No.310524 dated

18.10.2007 of Rs.45,000/- respectively. It is further alleged that

the complainant presented the said cheque bearing No.310525

which was returned with remark of "insufficient fund" by the

banker under memo of notice dated 18.10.2007 and 07.12.2007

respectively. It is further alleged that the Branch Manager of

ICICI Bank, Dhanbad instead of sending original cheque

No.310524 and cheque return memo dated 18.10.2007, by

mistake sent to the opposite party No.2, which was received by

him. Subsequently, the Branch Manager issued duplicate cheque

return memo dated 27.10.2007 in favour of the complainant.

Hence, the complainant send legal notice through registered post

with A/D demanding the cheque amount from opposite party

No.2 dated 19.12.2007 but he did not reply to the notice nor paid

the amount. Hence, the complaint was lodged.

3. Upon summons, the accused appeared and claimed to be tried.

In order to substantiate his case, the complainant was examined as a witnesses(CW-1) and he has also adduced following documentary evidence:-

Criminal Revision No.1504 of 2015

Ext.1Cheque No.310525 dated 07.12.2007 of

Rs.45,000/-

Ext.2 Cheque return memo dated 07.12.2007

regarding cheque No.310525

Ext.3 Cheque return memo of cheque No.310524

dated 18.10.2007 of Rs.45,000/-

Ext. 4 certificate issued by ICICI Bank dated

07.12.2007.

Ext.5 Advocate notice dated 12.12.2007

Ext.6 & 6/1 Postal receipts dated 19.12.2007

4. On the other hand, no oral or documentary evidence was

adduced by the defence except cross-examination with the

complainant(CW1). The accused has pleaded his innocence in

his statement under section 313 of Cr.PC and non-receipt of

legal notice allegedly sent to him by the complainant.

5. Learned trial court after considering the evidence available on

record arrived at clear cut findings that there was un-rebutted

evidence led by the complainant about the agreement to sale

plastic goods between the complainant and accused and

Rs.90,000/- was given to the accused as advance in the month

September, 2007. It was also proved that the accused did not

supply the materials nor return the money rather in order to

satisfy his liability, he issued two cheques in favour of the

complainant, which were dishonoured due to "insufficient Criminal Revision No.1504 of 2015

funds" in the bank account of the drawer. After compliance of

the provision of Section 138 of Negotiable Instrument Act, the

complaint was instituted, hence, the accused was held guilty and

sentenced to undergo of S.I. of 6 months for the offence under

section 138 of N.I. Act and also to pay compensatory cost of

Rs.90,000./- under section 357 of Cr.PC.

6. The opposite party No.2 assailed the judgment of conviction

passed by the trial court before the appellate court by filing Cr.

Appeal No.78 of 2014 mainly on following grounds.

(i) As per Ext.6 & 6/1, it is apparent that legal

notice was sent to the appellant on 19.12.2007

and the complaint petition was lodged on

18.01.2008 i.e. within a period of one month.

(ii) There is no material on record showing the

date of service of legal notice upon the appellant

to furnish the cause of action under the proviso(c)

of section 138 of N.I. Act and provision of

section 142 of the said Act.

(iii) The acknowledgment card has not been

proved to show the date of receipt of notice and

postman has also not been examined.

(iv) In the above mentioned circumstances, the

presumption of service of notice within the period

of 30 days may be raised in terms of section 27 of

Criminal Revision No.1504 of 2015

the General Clauses Act, 1897 and after expiry of

30 days, the appellant is required to make

payment within 15 days. Thereafter, the cause of

action will arise.

(v) Therefore, the complaint being instituted

within one month from the date of sending legal

notice without proof of its receipt and providing

15 days' time to drawer is immature and against

the statutory provision constituting no offence

under section 138 of N.I. Act.

7. The learned appellate court after apprising with the relevant

provision of Sections 138 and 142 of Negotiable Instrument Act,

in the light of aforesaid points of arguments raised on behalf of

the appellant particularly in view of the Ext. 6 & 6/1 arrived at

conclusion at para 15 of the judgment, which is extracted herein

under:-

"15. After going through Ext.6 and 6/1 it is clear

that legal notice was sent to the appellant on

19.12.07. As per clause(c) of section 138 of N.I.

Act if the drawer of such cheque fails to make

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 15 days of the

receipt of the said notice. As per clause(b) of

Criminal Revision No.1504 of 2015

section 142 of N.I. Act any complaint can be filed

within one month on the date on which the cause

of action arose under clause(c) of the proviso of

u/c 138 of N.I. Act. Now it is clear that in the

instant case no notice has been served upon the

appellant as neither its acknowledgement nor any

other document has been brought on record to

show that notice was served upon the appellant. It

is also pertinent to note that the postman of the

postal department has also not been examined to

prove that whether the notice was served/

delivered upon the appellant or not, if it was

served then on which date of service of the

notice/delivery of registered letter sent to the

appellant. Under such circumstances it will be

presumed that notice will be served upon the

appellant within 30 days as per section 27 of

General Clauses Act and after expiry of 30 days

the accuse/appellant required to make payment

within 15 days of the notice, and thereafter,

complaint should have been filed. It is the

specific case of the appellant that he was never

served any notice as alleged by the respondent.

From the materials available on record it is clear

Criminal Revision No.1504 of 2015

that notice was sent to the appellant on 19.12.07

but no service of notice has been proved by

adducing any concrete and cogent evidence then

the service of notice upon the appellant/accused

will be presumed within a period of 30 days and

thereafter, accuse/appellant is required to make

payment within 15 days and after expiry of the

said period cause of action will arise. But in the

instant case after sending the notice on 19.12.07

the complaint petition has been filed on 18.1.08

which is premature."

8. In view of the above findings, learned appellate court set aside

the conviction and sentence of the appellant passed by the

learned trial court and allowed the appeal holding the complaint

petition filed by the present petitioner on 18.01.2008 to be pre-

matured.

9. The petitioner (complainant) assailing the impugned judgment

passed by the learned appellate court has submitted that learned

appellate court has erred in raising the presumption of service of

notice within one month in view of provision of Section 27 of

General Clauses Act. The complainant was not required by law

to wait and watch for 30 days and thereafter to institute the

complaint case after lapse of 15 more days. The complainant has

fulfilled the basic requirement as prescribed under proviso of

Criminal Revision No.1504 of 2015

Section 138 of N.I. Act and Section 142 of the said Act. The

interpretation adopted by the learned appellate court encourages

the dishonest drawer of the cheque to escape his liability merely

on the technicalities.

10. Learned counsel has placed reliance upon the judgment in the

case of CC Allavi Haji Vs. Pellapetti Mohd. & Anr. reported in

(2007) 6 SCC 555 and Ajit Seeds Ltd. Vs. K. Gopala

Krishaniya reported in (2014) 12 SCC 685.

11.On the other hand, learned counsel for the opposite party No.2

defending the impugned judgment passed by learned appellate

court has submitted that the learned appellate court has very

wisely and aptly considered all aspects of the case in the light of

documentary evidence adduced by the complainant and since

the case was instituted without providing 15 days' time from

deemed date of service of notice, it is not maintainable in the

eye of law constituting no offence under section 138 of N.I. Act.

Therefore, the impugned judgment suffers from no illegality or

infirmity calling for any interference by way of this revision,

which is fit to be dismissed.

12.Learned counsel for the opposite party No.2 has placed reliance

on following judgments:-

(i)Shakti Travel & Tours Vs. State of Bihar and

Another reported in (2002) 9 SCC 415

Criminal Revision No.1504 of 2015

(ii)Subodh S. Salaskar Vs. Jayprakash M. Shah

and Another reported in (2008) 13 SCC 689

(iii)Yogendra Pratap Singh Vs. Savitri Pandey

and Another reported in (2014) 10 SCC 713

(iv)Raj Kumar Prasad Vs. The State of

Jharkhand & Anr. dated 10.05.2016 passed in

(v)Shyam Sundar Singh @ Shyam Sunder

Singh Vs. The State of Jharkhand & Anr.

passed in I.A. No.3709 of 2019 in Acq. App. (C)

No.48 of 2019 disposed of vide order dated

20.06.2019.

13. On the basis of contentions of the parties, the following

questions arises for consideration in this revision application:-

(i) Whether the complaint case instituted under

section 138 of N.I. Act within the period of 30

days from the date of issuance of legal notice

demanding the cheque amount from its drawer is

pre-matured?

(ii) Whether it is necessary to make averments in

the complaint about the service of notice to the

accused or accused has evaded or deliberately not

replied to the legal notice?

Criminal Revision No.1504 of 2015

14.Before imparting my verdict on the above issues involved in this

case, it is desirable to quote the relevant provisions of the

Negotiable Instrument Act:

Section 138 "Dishonour of cheque for insufficiency, etc., of

funds in the account.--Where any cheque

drawn by a person on an account maintained by

him with a banker for payment of any amount of

money to another person from out of that account

for the discharge, in whole or in part, of any debt

or other liability, is returned by the bank unpaid,

either because of the amount of money standing

to the credit of that 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 that bank, such person shall

be deemed to have committed an offence and

shall, without prejudice to any other provision of

this Act, be punished with imprisonment for [a

term which may be extended to two years'], or

with fine which may extend to twice the amount

of the cheque, or with both:

Provided that nothing contained in this section

shall apply unless--

Criminal Revision No.1504 of 2015

(a) the 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;

(b) the payee or the holder in due course of the

cheque, as the case may be, 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 thirty days] of the receipt of

information by him from the bank regarding the

return of the cheque as unpaid; and

(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."

Section 142...... Cognizance of offences.--

Notwithstanding anything contained in the Code

of Criminal Procedure, 1973 (2 of 1974),--

(a) no court shall take cognizance of any offence

punishable under section 138 except upon a

complaint, in writing, made by the payee or, as

the case may be, the holder in due course of the

cheque;

Criminal Revision No.1504 of 2015

(b) such complaint is made within one month of

the date on which the cause of action arises under

clause (c) of the proviso to section 138:

[Provided that the cognizance of a complaint may

be taken by the Court after the prescribed period,

if the complainant satisfies the Court that he had

sufficient cause for not making a complaint

within such period;]

(c) no court inferior to that of a Metropolitan

Magistrate or a Judicial Magistrate of the first

class shall try any offence punishable under

section 138.]

15.Now I have to also discuss the relevant citations relied upon by

the respective parties while placing their arguments.

16.In the case of Ajeet Seeds Limited vs. K. Gopala Krishnaiah

(2014) 12 SCC 685, the High Court quashed the complaint

exercising the power under section 482 of Cr.PC on the grounds:

(i) that there was no averments in the complaint that the notice

issued under section 138 of N.I. Act by the complainant was

served upon the accused and (ii) even there was no proof that

either the said notice was served or it was returned

unserved/unclaimed.

Criminal Revision No.1504 of 2015

Allowing the appeal, the Hon'ble Apex Court

held as under:-

"Section 114 of the Evidence Act, 1872 enables

the court to presume that in the common course of natural events,

the communication sent by the post would have been delivered at

the address of the addressee. Further section 27 of General Clauses

Act, 1897 gives rise to a presumption that service of notice has

been effected when it is sent to the correct address by the registered

post. It is not necessary to aver in the complaint that in spite of the

return of the notice unserved, it is deemed to have served or that the

addressee is deemed to have knowledge of notice. Unless and until

the contrary is proved by the addressee, service of notice is deemed

to have been effected at the time at which the letter would have

been delivered in the ordinary course of business.

Applying the above conclusions to the facts of the

case, it must be held that the High Court clearly erred in quashing

the complaint on the ground that there was no recital in the

complaint that the notice under section 138 of N.I. Act was served

or it was returned unserved/unclaimed. That is a matter of evidence.

In C. C. Alavi Haji vs. Palapetty Muhammed and Anr. (2007) 6

SCC 555, the Apex Court did not deviate from the view taken in

the case of D. Vinod Shivappa vs Nanda Belliappa (2006) 6 SCC

456 but reiterated the view expressed therein with certain

clarification. The Apex court in D. Vinod Shivappa case has held

Criminal Revision No.1504 of 2015

that service of notice is a matter of evidence and proof and it would

be premature at the stage of issuance of process to move the High

Court for quashing the proceeding under section 482 of Cr.PC.

These observations are squarely attracted to the present case. The

High Courts reliance on an order passed by a Two Judge Bench in

Shakti Travel & Tours (2002) 9 SCC 415 is misplaced. The Three

Judges Bench of Supreme Court in C.C. Alavi Haji's case has

conclusively decided the issues concerned. Thus the judgment in

Shakti Travel & Tours case does not hold the filed any more.

In view of the above impugned judgment of the

High Court was set aside and the instant complaint was restored.

17.In the case of C. C. Alavi Haji vs. Palapetty Muhammed and Anr.

(2007) 6 SCC 555, it was observed that when the notice was sent

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

mandatory requirement of issue of notice in terms of section 138

proviso (b) of N.I. Act stands complied with. It is needless to

emphasis that the complaint must contain basic facts regarding the

mode and manner of issuance of notice to the drawer of the cheque.

It is well settled that at the time of taking cognizance of the

complaint under section 138 of N.I. Act, the court is required to be

prima facie satisfied that a case under the said section is made out

and afore-noted mandatory statutory procedural requirement have

been complied with. It is then for the drawer to rebut the

presumption about the service of notice and so that he had no

Criminal Revision No.1504 of 2015

knowledge that notice was brought to his address or that the address

mentioned on the cover box is incorrect or that a letter was never

tendered or that the report of the postman was incorrect. This

interpretation of the provision would effectuate the object and

purpose for which the proviso to section 138 was enacted, namely,

to avoid unnecessary hardship to an honest drawer of a cheque to

provide him opportunity to make amends.

Any drawer who claims that he had not received

the notice sent by the post, can within 15 days of receipt of

summons from the court in respect of complaint under section 138

of Act, make payment of the cheque amount and submit to the court

that he had make payment within 15 days of receipt of summons

(by receiving a copy of the complaint with the summons) and,

therefore, the complaint is liable to be rejected. A person who does

not pay within 15 days of the receipt of the summons from the court

along with the copy of the complaint under section 138 of the Act,

cannot obviously contend that there was no proper service of notice

as required under section 138 of the Act, by ignoring statutory

presumption to the contrary under section 27 of the General

Clauses Act and Section 114 of the Evidence Act.

Further exploring the nature and object of section

138 of proviso (b) (c) regarding requirement of giving notice to

drawer of cheque prior to prosecution under section 138, it was

observed that object of such requirement is to avert unnecessary

Criminal Revision No.1504 of 2015

prosecution of an honest drawer and give an opportunity to him to

make amends and thus avoid unnecessary hardship to him. The

prosecution under section 138 of NI Act has been made subject to

certain conditions which are stipulated in the provisos appended to

section 138. Therefore, the observance of stipulating in proviso (b)

to section 138 and its aftermath in proviso(c) to the said section

being a pre-condition for invoking of offence under section 138 of

the Act giving notice to the drawer before filing the complaint

under section 138 of the Act is a mandatory requirement. The

requirement of giving notice is a clear departure from the rule of

criminal law, where there is no stipulation of giving a notice before

filing a complaint. The entire purpose of requiring a notice to give

an opportunity to the drawer to pay the cheque amount within 15

days of service of notice and thereby free himself from the penal

consequences of section 138.

While construing the said provision, the object of

legislation has to be borne in mind. The chapter XVIII of the N.I.

Act originally containing sections 138 to 142 was inserted in the

Act to create an atmosphere of faith and reliance on banking system

by discouraging people from not honouring their commitments by

way of payment through cheques. Section 138 of the Act was

enacted to punish those unscrupulous persons who purported to

discharge their liability by issuing cheque without really intending

to do so. To make this provision contained in the said chapter more

Criminal Revision No.1504 of 2015

effective, some more sections were inserted in the chapter and some

amendments in the existing provisions were made. These

amendments do indicated the anxiety of the legislature to make the

provision more result oriented.

18.Learned counsel for the opposite party No.2 has placed reliance the

judgment Shakti Travel & Tours Vs. State of Bihar and Another

reported in (2002) SCC 415 which has been overruled by the full

Bench of the Hon'ble Apex Court in C. C. Alavi Haji(supra) and

Ajeet Seeds Limited (supra) as discussed above.

19.In the case of Subodh S. Salaskar Vs. Jayprakash M. Shah and

Anr. (2008) 13 SCC 689 relied upon by the opposite party No.2,

the cheque presented to bank on 10.01.2001 were returned to

Respondent No. 1 by the bank alleging that no such account in the

name of appellant was in operation. A legal notice dated

17.01.2001 under section 138 of proviso (b) of the N.I. Act was

sent by speed post. The complaint petition alleging commission of

an offence under section 138 of N.I. Act, however was filed on

20.04.2001. An application to amend the complaint petition for

adding offence under section 420 of Indian Penal Code was

allowed by an order dated 14.08.2001. The appellant's application

dated 16.12.2003 for discharge on the premise that the complaint

petition was barred by limitation was dismissed. The revision

application filed by the appellant before the learned Additional

Sessions Judge as well as criminal writ petition was dismissed.

Criminal Revision No.1504 of 2015

Allowing the appeal, the Hon'ble Supreme Court

held in the facts and circumstances of the case, the High Court was

not correct in taking the view that the court as per proviso to under

section 142(b) of N.I. Act, had jurisdiction to allow the amendment

of the complaint petition at a letter such. Ex facie, the amendment

application was barred by limitation no application for condonation

for delay was filed. The matter might have been different if the

Magistrate could have exercised its jurisdiction under section 5 of

the Limitation Act, 1963 or section 473 of Cr.PC. The provisions of

said acts are not applicable. In any event no such application for

condonation of delay was filed.

Considering the factual aspects of the case, it was

observed that condition precedent for taking cognizance as

prescribed under section 138 of proviso (c) and 142(b) are satisfied.

Admittedly, notice was sent by the speed post on 07.01.2001 and

the complaint was filed on 20.04.2001. Even if the presumption of

deemed service within a reasonable time of 30 days (i.e.,

16.02.2001) is taken, the accused was required to make payment

within 15 days i.e. on or about 02.03.2001. The complaint petition

which should have been filed on 02.04.2001 was filed on

20.04.2001 was clearly barred by the limitation. It was further

observed that proviso appended to section 138 of N.I Act limits the

applicability of the main provisions. Unless the conditions

precedent for taking cognizance the offence under section 138 of

Criminal Revision No.1504 of 2015

NI Act is satisfied, the court will have no jurisdiction to take

cognizance. The complaint petition in view of section 142 (b) of the

NI Act was required to be filed within one month from the date on

which the cause of action arose in terms of the clause (c) of the

proviso to section 138 of the NI Act. The legal notice admittedly

was issued on 17.01.2001. It was sent by the speed post. It was

supposed to be served within a couple of days. Although the actual

date of service of notice was allegedly not known, the complaint

proceeded on the basis that the same was served within a

reasonable period. The complaint petition admittedly was filed on

20.04.2001. The notice having been sent on 17.01.2001, if the

presumption of the service of notice within a reasonable time is

raised, it should be deemed to have been served at best within the

period of 30 days from the date of issuance of thereof. In the

situation, the complaint was hopelessly time barred.

20.In the case of Yogendra Pratap Singh Vs. Savitri Pandey and Anr.

(2014) 10 SCC 713 relied upon by the opposite party No.2, it was

held that any complaint filed before the expiry of 15 days from the

date of receipt of notice under section 138 proviso(c) of the Act is

non est. Hence, no cognizance of offence can be taken on the basis

of such non est complaint. In the instant case, the demand notice in

question was admittedly served upon the drawer of the cheque

(accused) on 23.09.2008, the complaint was presented on

07.10.2008 was filed before expiry of the stipulated period of 15

Criminal Revision No.1504 of 2015

days. The Magistrate all the same took cognizance of the offence

on 14.10.2008 and issued summons to the accused, who then

assailed the said order in a petition under section 482 of CrPC

before the High Court of Judicature of Allahabad. The High Court

took the view that since the complaint had been filed within 15

days of the service of the notice the same was clearly premature

and the order pressed by Magistrate taking cognizance of the

offence on the basis of the such complaint is legally bad. The High

Court accordingly quashed the complaint and the entire

proceedings relating thereto in terms of its order impugned in the

present appeal before the Hon'ble Apex Court. The appeal was

dismissed with the aforesaid observation, it was held at para 38 that

no complaint can be maintained against the drawer of the cheque

before the expiry of the 15 days from the date of receipt of notice

because the drawer/ accused cannot be said to have committed any

offence until then. Accordingly impugned order passed by the

High Court was upheld.

21.Another citation relied upon by the opposite party No.2 in the case

of Raj Kumar Prasad Vs. The State of Jharkhand and Anr. passed

in Cr.M.P. No.893 of 2008 decided by Single Bench of this Court

wherein the legal notice was served on 02.11.2006 but there was

nowhere mentioned in the entire compliant petition that when said

notice was served upon or received by the petitioner or even

refused and without making any such averment, the complainant

Criminal Revision No.1504 of 2015

filed the complaint on the same day i.e., on 02.11.2006. Although,

the cognizance was taken on 09.02.2007. Therefore, it was held that

the requirement of proviso (b) to section 138 and 142 of the Act has

not been complied with. Hence, no offence is constituted.

Accordingly, the entire proceeding of the complaint case was

quashed.

22.The last citation relied upon by the opposite party No.2 in Shyam

Sunder Singh case (Jhr.H.C) is concerned with grant of certificate

to file acquittal appeal by complainant and lays down no principle

of law.

23.Now coming to the points of consideration involved in this case, in

the light of above discussions and principles of law propounded by

the Hon'ble Apex Court, it is crystal clear that in the instant case,

legal notice was issued on 19.12.2007 and the complaint was

instituted just within one month i.e. 18.01.2008. As per

presumptions under section 114 of Illustration(f) of the Evidence

Act and section 27 of General Clauses Act, the service of notice

upon the accused within a reasonable time is to be deemed and

anything otherwise has to be rebutted by the accused by leading

evidence. The stretching of the legal presumption for exactly 30

days and thereafter providing 15 days further time for making

payment of cheque amount to a dishonest drawer of the cheque is

nowhere justified under the law. Although, the said interpretation

was accepted by the Hon'ble Apex Court while computing the

Criminal Revision No.1504 of 2015

period of limitation in institution of the complaint case. In the

instant case, there is no denial of existence of legal liability of the

accused which was never discharged, the issuance of cheque under

signature of the accused is also admitted fact. It is also not disputed

that the notice was not sent on correct address of the addressee, the

simple denial from the receipt of the notice does not entail any

adverse consequences. It is also noticed that Hon'ble Apex Court in

the case of C. C. Alavi Haji case has specifically propounded

guidelines that in the case where the drawer claims not to have

received notice sent by the post, but received the copy of the

complaint with the summons, he can within 15 days make payment

of the cheque amount and on that basis submit to the court that the

complaint be rejected. The complainant is not required to prove the

service of notice on accused before institution of the case. In the

instant case, the drawer has not denied about receipt of copy of

complaint with summons and he appeared and contested the case

throughout without raising any other substantial issues absolving

him from the legal liability. Accordingly, a dishonest drawer of

cheque can't get a premium from his own default. It is not out of

place to observe that the learned trial courts must always adhere to

the aims and object of giving notice to accused and examine the

contents of complaint petition at the very stage of its registration

and ensure that all legal formalities are complied with as prescribed

Criminal Revision No.1504 of 2015

under section 138 & 142 of N.I. Act, so as to alleviate any technical

issue to crop up at the trial.

24. In the aforementioned facts and circumstances of the case, the plea

taken by the accused (O.P. No.2) has no legal substance. It appears

that learned Appellate Court has miserably failed to properly

appreciate the entire aspects of the case in true perspectives and

without adverting to the provisions of law as well as principles

propounded by the Apex Court, and arrived at illegal conclusion

while reversing the judgment of the trial court in convicting the

accused for the offence under section 138 N.I. Act. The judgment

passed by the learned Appellate Court cannot be sustained in view

of the legal principles propounded by the Hon'ble Apex Court as

discussed above, which is hereby set aside.

25.Accordingly, this revision application is allowed.

26.The case is remitted back to learned Appellate Court to re-hear the

appeal and pass a fresh judgment after giving opportunity of

hearing to the parties. Both parties are directed to appear before the

concerned Appellate Court within six weeks from the date of this

order.

27. All interim orders are vacated.

28.Let a copy of this order along with the record of trial court be sent back for information and needful.

(Pradeep Kumar Srivastava, J.) Jharkhand High Court, at Ranchi Date: 02/08/2024 Pappu/- A.F.R. Criminal Revision No.1504 of 2015