Rajkumar Arora vs Santosh Gujjar
2023 Latest Caselaw 12563 MP

                                       1


     IN THE HIGH COURT OF MADHYA PRADESH
                         AT G WA L I O R
                              BEFORE
     HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR

                    ON THE 4th OF AUGUST, 2023

                 CRIMINAL REVISION No. 3698 of 2019

BETWEEN:-
RAJKUMAR ARORA S/O LATE SHRI MUNSHI LAL
ARORA, PROPRIETOR AGRO SEEDS PETITCIDES,
INDUSTRIAL AREA, R/O INDRAPRASTH COLONY,
VIDISHA, (MADHYA PRADESH)
                                                         PETITIONER

(SHRI S.K.SHRIVASTAVA - LEARNED COUNSEL FOR THE PETITIONER )

AND
 SANTOSH GUJJAR S/O SHRI HARI SHANKAR GUJJAR
 VILL. CHATTAR THASIL UDAIPURA DISTRICT RAISEN
 (MADHYA PRADESH)
                                                     .....RESPONDENT

(SHRI RAMVEER SINGH - LEARNED COUNSEL FOR THE
RESPONDENT). )


      This application coming on for hearing this day, the court passed
the following:

                               ORDER

This Criminal Revision under section 397 read with Section 401 of Cr.P.C is filed assailing the order dated 15.05.2019 passed by learned Additional Sessions Judge to the Court of IV Additional Sessions Judge,

Vidisha in Cr.Revision No.1 of 2019 whereby, the order dated 20.12.2018 of Mr. Krishna Agrawal, Judicial Magistrate First Class, Vidisha passed in Complaint Case No.3612 of 2015 rejecting the application for rejection of complaint, was set-aside and the complaint filed by the petitioner was rejected.

Exposition of facts giving rise to this revision petition, is as under:

1. Rajkumar Arora, revision petitioner, has filed a complaint under Section 138 of the Negotiable Instrument Act alleging dishonor of cheque dated 10.12.2012 for an amount of Rs.7,00,000/-. The petitioner/complainant sent demand notice of cheque amount on 13.02.2013 which was returned with a note dated 20.02.2013 that addressee has refused to accept the notice. Thereafter, complaint was presented before learned JMFC on 07.03.2013. The learned Magistrate took cognizance of offence punishable under section 138 of N.I.Act on 21.03.2013.

2. The respondent/accused filed an application on 06.08.2018 inter- alia alleging that the complaint filed by the petitioner/complainant is premature, therefore, liable to be dismissed. Learned Judicial Magistrate vide order dated 20.12.2018 rejected the application.

3. Feeling aggrieved by rejection of the application, the accused/respondent preferred revision before the Sessions Court. In Revision No.1 of 2019, learned ASJ to the Court of IV ASJ, District Vidisha vide impugned order dated 15.05.2019 allowed the revision and dismissed the complaint as premature.

4. Feeling aggrieved by the order of revisional Court, this revision petition is filed mainly on the ground that the complainant had sent a

demand notice on 13.02.2013 that was refused by respondent/accused on 20.02.2013. The accused was required to make payment of cheque amount within 15 days of the service of notice. Such period of 15 days was to expire on 06.03.2013, the complaint was filed on 07.03.2013. Therefore, the learned revisional Court committed grave error of law in dismissing the complaint as premature. It is further stated that learned trial Court has taken cognizance on 21.03.2013. No prejudice was caused to the accused as the cognizance was taken after the prescribed period of 15 days from service of the demand notice. The impugned order deserves to be set-aside and the complaint be directed to be restored.

Learned counsel for the petitioner relying on judgment of the Supreme Court in the case of Narsingh Das Tapadia Vs. Goverdhan Das Partani reported in (2000) 7 SCC 183 and the judgments of M.P. High Court in cases of Chouradiya Trading Co. Vs. Sushil Kumar reported in 2010(1) JLJ 294, Bapulal Vs. Kripachand Jain reported in 2003(3) MPLJ 66, Rajesh Kumar Vs. Manoj Jat reported in 2003(1) MPLJ 177 and Prashant M. Aachawal Vs. Gulab Singh Rghuvanshi reported in 2007(2) MPLJ 212 contends that even if the complaint was filed before expiry of 15 days from the date of service of the demand notice, since the cognizance of the offence was taken much after the expiry of said period, the complaint cannot be treated as premature. Hence, the order of revisional Court suffers from the illegality and impropriety.

Per contra, learned counsel for the respondent relying on the judgment of the Delhi High Court in the case of Rajender Vs. Yogender Tyagi passed on 26th September, 2018 in Cr.Appeal No.953 of 2018

contends that the complaint was filed before expiry of 15 days from the date of refusal to accept the demand notice, therefore, the complaint was premature. The cause of action accrues to the complainant only after expiry of 15 days of the demand notice. Learned revisional Court has not committed any illegality in dismissing the complaint as premature.

Heard learned counsel for both the parties and perused the record.

The uncontroverted facts between the parties with regard to relevant dates, are as under :

(1). The demand notice to pay the amount of cheque in question was issued on 13.02.2013;

(2). The demand notice returned unserved with note dated 20.02.2013 that addressee (accused) has refused to accept the notice;

(3). The complaint under Section 138 of N.I. Act was presented before learned JMFC Vidisha on 07.03.2013;

The above dates are also reflected from the certified copy of the complaint, affidavit of Rajkumar submitted in support of the complaint and the proceedings of the learned trial Court;

Learned counsel for the revision petitioner contends that the demand notice dated 13.02.2013 would be deemed to be served on respondent-accused on 20.02.2013. Therefore, statutory period of 15 days for payment of the amount of cheque would complete on 06.03.2013, therefore, the complaint filed on 07.03.2013 cannot be treated as premature.

Section 138 (c) of the N.I. Act provides as under : "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".

The statutory period of 15 days for payment of amount of cheque will be reckoned from the date immediately following the day on which, the demand notice was served on the accused. The date on which, the demand notice was served and the accused refused to accept it, is to be excluded for reckoning 15 days' period within which, the accused should have made the payment under Section 138 (c) of the N.I. Act. Thus, the period of 15 days would expire on 07.03.2013, therefore, the cause of action to file complaint under Section 138 of N.I. Act in the instant case arose to the complainant only on 08.03.2013. Consequently, the complaint filed on 07.03.2013 was premature. (Saketh India Ltd. Vs. India Securities Ltd reported in (1999) 3 SCC 1 and Econ Antri Ltd. Vs. Rom Industries Ltd reported in (2014) 11 SCC 769, relied. )

Learned counsel for the petitioner submits that in case of Narsingh Das Tapadia (Supra), it was held that where a complaint is filed before arising of cause of action in terms of Section 138 proviso (c), instead of dismissing the complaint, taking of cognizance should be postponed till arising of cause of action. In the instant case, learned trial Court has taken cognizance of the offence punishable under Section 138 of the N.I.Act on 21.03.2013, therefore, the revisional Court committed error in rejecting the complaint as premature in view of the law laid down in Narsingh Das Tapadia (Supra) and other judgments of the M.P. High Court referred to hereinbefore.

The three Judge Bench of Supreme Court in the case of Yogendra Pratap Singh Vs. Savitri Pandey, (2014) 10 SCC 713, on consideration of the law laid down in Narsingh Das Tapadia (Corum- Two Judges)

(Supra), and all other judgment on the issue, held as under :

"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. [Kusum Ingots & Alloys Ltd. v. Pennar Peterson Securities Ltd., (2000) 2 SCC 745 : 2000 SCC (Cri) 546 : AIR 2000 SC 954] 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 Narsingh Das Tapadia v.Goverdhan Das Partani, (2000) 7 SCC 183 : 2000 SCC (Cri) 1326] and so also the judgments of various High Courts following Narsingh Das Tapadia [Narsingh Das Tapadia v. Goverdhan Das Partani, (2000) 7 SCC 183 : 2000 SCC (Cri) 1326] that if the complaint under Section 138 is filed before the 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 [Sarav Investment & Financial Consultancy (P) Ltd. v. Llyods Register of Shipping Indian Office Staff Provident

Fund, (2007) 14 SCC 753 : (2009) 1 SCC (Cri) 935] 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 [Sarav Investment & Financial Consultancy (P) Ltd. v. Llyods Register of Shipping Indian Office Staff Provident Fund, (2007) 14 SCC 753 : (2009) 1 SCC (Cri) 935] 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 the law and criminal proceedings initiated on such complaint are liable to be quashed".

Therefore, the dictum of law down in Narsingh Das Tapadia (Supra) and all other judgments referred by the petitioner is of no assistance to him. The learned revisional Court relying on the judgment of Delhi High Court in case of Rajender Vs. Yogender Tyagi passed on 26th September, 2018 in Cr.Appeal No.953 of 2018 committed no mistake in holding that the complaint in the instant case, was premature as no cause of action arose to the complainant on the date of presentation of complaint.

Thus, the impugned order does not suffer from any illegality or impropriety. No case for interference in exercise of revisional jurisdiction is made out.

The petition sans merits and is hereby dismissed.

(SANJEEV S KALGAONKAR) JUDGE Rks.

RAM KUMAR Digitally signed by RAM KUMAR SHARMA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474001, st=Madhya Pradesh, 2.5.4.20=fddb839268e92e8a7e213279c322478eb4761365df45a6e590a

SHARMA 0c9b59957024a, pseudonym=3A2DD409C7E00166B001086C51C67E732E553F43, serialNumber=3B922EA4FBB2AB6A4AC3EFC94C33671E3FD765EE70A3 038453F8BC47FB9A192F, cn=RAM KUMAR SHARMA Date: 2023.08.05 15:03:36 +05'30'