Madhya Pradesh High Court
Sundarlal vs Arpitramji on 1 May, 2023
Author: Anjuli Palo
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE ANJULI PALO
ON THE 1 st OF MAY, 2023
MISC. CRIMINAL CASE No. 21519 of 2017
BETWEEN:-
SUNDARLAL S/O SHRI LALCHAND CHADHAR, AGED
ABOUT 35 YEARS, VILLAGE SUNEHRA AT PRESENT R/O
AYODHYA NAGR IN THE HOUSE OF KARHOLA W ALI
KURMI JI BEGUMGANJ DISTT. RAISEN (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI AMAN DWARA - ADVOCATE)
AND
ARPITRAMJI S/O RAKESH BHARGAV STATE BAK
COLONY BEGUMGANJ DISTT. RAISEN (MADHYA
PRADESH)
.....RESPONDENT
This petition coming on for admission this day, th e court passed the
following:
ORDER
This petition under section 482 of Cr.P.C. has been filed by the petitioner
for quashing the proceedings of criminal complaint dated 27.08.2016 bearing
Criminal Case No.579/2016 pending before the J.M.F.C., Begumganj, District
Raisen.
2. The facts, in a nutshell, are that the respondent has filed a complaint
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under Section 138 of the Negotiable Instruments Act against the petitioner that
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petitioner had taken cash amount of Rs.2,40,000/- from the
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Date: 2023.05.03 18:38:41 IST
respondent/complainant. In this regard, he had issued a cheque No.775210
dated 25.04.2016 for a sum of Rs.2,40,000/- in favour of the respndent, which
was dishonoured on 01.06.2016. Thereafter, the respondent again issued notice
on 14.06.2016 by registered post, which was returned on 30.06.2016.
Thereafter, the respondent again issued the second notice on 27.07.2016, which
was also returned on 01.08.2016. Thereafter, respondent has filed complaint
under Section 138 of the Negotiable Instruments Act against the petitioner on
27.08.2016, which is barred by limitation.
3. Petitioner has filed this petition to quash the proceeding initiated by the
respondent/complainant against him under Section 138 of the Negotiable
Instrument Act on the grounds that the unserved notice was received by the
respondent/complainant on 30.06.2016. Thus, it is necessary for the
respondent/complainant to file complaint within one month upto 30.07.2016,
but the complaint was filed on 27.08.2016 after delay of 26 days. It is further
submitted that there is no provision in the Act to issue second notice to the
borrower, but to take advantage of period of limitation, the complainant issued
second demand notice to the petitioner. In this regard, petitioner has filed an
application under Section 142 of the N.I. Act before the trial Court, which has
been rejected. Hence, he prays that the order is against the law and is liable to
be set aside.
4. In the case of Birendra Prasad Sah vs. State of Bihar & another
(2019) 7 SCC 273, wherein it has held that:-
"4. Assailing the judgment of the High Court, Mr
Nagendra Rai, learned Senior Counsel submitted that in MSR
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Leathers v. S. Palaniappan a three judge Bench of this Court
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has taken the view that the issuance of successive notices is
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Date: 2023.05.03 18:38:41 IST
permissible under the provisions of Section 138 having regard
to the object of the legislation. Moreover, 2 (2013) 1 SCC 177
the learned Senior Counsel submitted that the delay in the
institution of the complaint was condoned by the CJM under
Section 142. Hence, there was an error on the part of the High
Court in quashing the proceedings."
5. In the case of Makaradhwaj Behera vs Satyanath Mahanta 2010
CrI LJ 983 (Ori). wherein it has held that:-
"Though a registered notice as contemplated under
Section 138 of the Negotiable Instruments Act was issued,
the same was not served upon the petitioner and returned
with an endorsement that he was absent for 6 to 7 days. It
was also not the case of the complainant, that the
petitioner was intentionally avoiding to receive the notice
and/or the address given was fictitious. Thus, it was
apparent that no notice was served upon the accused as
mandatorily required under sub-sections (b) and (c) of
Section 138 of the Negotiable Instruments Act which
would mean that no demand notice had been made within
15 days from the date of dishonour of cheque in question.
In other words, the mandates inbuilt in Section 138 of the
Negotiable Instruments Act had not been complied with."
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6. In the present case, from the report of the Postal Department, it
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appears that the petitioner was not found on several time at his residential
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address mentioned in the notice. Therefore, second notice was issued by the
complainant. Looking to aforesaid facts and circumstances of the case and in
the light of the observations made by the Apex Court in the cases of Birendra
Prasad Sah (supra) and Makaradhwaj Behera (supra), objection raised by
the petitioner is not acceptable. There is delays of only 26 days in filing of
complaint against the petitioner, which can be condoned. Hence, this Court is
not inclined to quash the proceedings of criminal complaint dated 27.08.2016
bearing Criminal Case No.579/2016 pending before the J.M.F.C., Begumganj,
District Raisen.
7. In the result, this petition is hereby dismissed.
(SMT. ANJULI PALO)
JUDGE
rj
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Date: 2023.05.03 18:38:41 IST
