Manoj Morya vs Smt Anita Minj
2023 Latest Caselaw 5222 MP

                                                    1
                 IN         THE      HIGH COURT OF MADHYA PRADESH
                                           AT GWALIOR
                                              BEFORE
                           HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
                                        ON THE 29 th OF MARCH, 2023
                                     CRIMINAL APPEAL No. 5949 of 2022

               BETWEEN:-
               MANOJ MORYA S/O RAMAVTAR MORYA, AGED ABOUT
               28 YEARS, OCCUPATION: STUDENT R/O 414-B, SURESH
               NAGAR, SHANKAR PARK THATIPUR DISTT. GWALIOR
               (MADHYA PRADESH)

                                                                               .....APPELLANT
               (BY SHRI VIVEK KUMAR MISHRA- ADVOCATE )

               AND
               SMT ANITA MINJ W/O SHRI NEELAM MINJ, AGED
               ABOUT 47 YEARS, R/O 752 B SHRI KAILASH BIHAR,
               NEAR SANAT HOME APARTMENT CITY CENTER
               GWALIOR (MADHYA PRADESH)

                                                                             .....RESPONDENT
               (BY SHRI VINOD KUMAR SHARMA- ADVOCATE )

                           Th is appeal coming on for hearing this day, t h e court passed the
               following:
                                                     ORDER

This appeal has been filed by the appellant/complainant under Section 378 of Cr.P.C. against the judgment dated 24.12.2021 passed by the JMFC, Gwalior, in Criminal Case No.1108/2012 whereby respondent has been acquitted of the offence under Section 138 of the Negotiable Instruments Act.

Signature Not VerifiedIn brief facts of the case are that respondent was in need of money for Signed by: MADHU SOODAN PRASAD purchasing the house, therefore, he borrowed a sum of Rs.7,00,000/- on Signing time: 01-04-2023 12:25:39 PM

18.9,2008 and thereafter on various dates a sum of Rs.4,50,000/-, thus, he borrowed a total sum of Rs.11,50,000/- with the assurance that he will refund the aforesaid amount very soon. But when the respondent did not refund the amount even after expiry of period as assured by him, appellant demanded the amount, then cheque No.577406 dated 24.5.2011 of State Bank of India Branch Malroad Morar worth Rs.11,50,000/- was given by the respondent. The said cheque was dishonoured on its presentation on 25.5.2011 with the note that cheque could not be encashed due to insufficient fund. Thereafter on 23.6.2011 he sent a registered notice to the respondent. Even after receipt of the notice, respondent did not pay the

amount. Therefore, he filed a complaint under Section 138 of the Negotiable Instruments Act and adduced his evidence in support of the complaint.

Learned trial Court vide impugned judgment para 39 observed that there is no evidence as to whether notice issued to the respondent has been served on him or not, but as per the provisions of Order 5 Rule 9(5) of CPC as the acknowledge of said registered notice has not been received back within 30 days, it is presumed that notice has been served. Thus, notice dated 23.6.2011 has been presumed to be served on the respondent on 23.7.2011. Thereafter he has filed the complaint on 3.8.2011 before expiry of period of 15 days so prescribed under Section 138(c) of the Negotiable Instrument Act for the drawer of the cheque to make the payment to the payee, and therefore, the complaint under Section 138 of the Signature Not Verified Signed by: MADHU SOODAN PRASAD Negotiable Instruments Act was not found maintainable and respondent Signing time: 01-04-2023 12:25:39 PM

was acquitted.

Heard learned counsel for the parties and perused the record. Section 138 of the Negotiable Instruments Act reads as under :- "138 Dishonour of cheque for insufficiency, etc., of funds in the account. Â"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 provisions 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-

(a) to (b) ......

(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."

In the present case, it is clear that appellant has filed the complaint on 3.8.2011 before expiry of period of 15 days as prescribed for the

drawer of such cheque to make the payment to the payee.

The Supreme Court of India in the case of Yogendra Pratap Singh vs. Savitri Pandey & Anr. decided on 19.9.2014 in Criminal Appeal

Signature NotNo.605/2012 Verified has held in para 37 as under :-

Signed by: MADHU SOODAN PRASAD Signing time: 01-04-2023 "37. A complaint filed before expiry of 15 days from the date 12:25:39 PM 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.19 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."

No evidence of postman has been adduced by the appellant that before 23.7.2011 notice has been served on the respondent.

In view of the aforesaid, in the considered opinion of this Court, trial Court has not committed any error in acquitting the respondent while holding the complaint to be not maintainable. This appeal is accordingly dismissed.

Signature Not Verified
Signed by: MADHU
SOODAN PRASAD                                                    (DEEPAK KUMAR AGARWAL)
Signing time: 01-04-2023
12:25:39 PM                                                               JUDGE
               ms/-





Signature Not Verified
Signed by: MADHU
SOODAN PRASAD
Signing time: 01-04-2023
12:25:39 PM