Madhya Pradesh High Court
Nishant Choubey vs Samir Sharma on 10 September, 2025
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
NEUTRAL CITATION NO. 2025:MPHC-JBP:43888
1 MCRC-6618-2016
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
ON THE 10th OF SEPTEMBER, 2025
MISC. CRIMINAL CASE No. 6618 of 2016
NISHANT CHOUBEY
Versus
SAMIR SHARMA
Appearance:
Shri Piyush Jain - Advocate for the petitioner.
None for the respondent though duly served.
ORDER
Petitioner/applicant/complainant has filed criminal appeal under
Section 378(4) of Cr.P.C. against judgement dated 05.03.2016 passed by
learned JMFC in Criminal Complaint No.3911 of 2011, whereby, respondent
has been acquitted of an offence under Section 138 of Negotiable
Instruments Act and aforesaid Appeal has been registered as M.Cr.C. as
petitioner has sought leave to appeal.
2 . Learned counsel for the petitioner submits that in the instant case,
petitioner received information with respect to dishonour of cheque on
02.11.2010. This fact also stands established from testimony of complainant
witness Sanjay Risodkar, Chief Manager, Union Bank, and from return
memo/return register (Ex.P/9). Learned counsel for the petitioner also
submits that in view of Section 138 of Negotiable Instruments Act, petitioner
is required to issue demand notice within 30 days from the date of receipt of
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information with respect to dishonour of cheque. Learned counsel for the
petitioner also submits that learned trial Court has misinterpreted the
provisions of Section 138 of Negotiable Instruments Act. It is also urged that
applicant has issued (Ex.P/7)'s notice on 09.11.2010 and petitioner received
information with respect to dishonour of cheque on 02.11.2010. Therefore,
the notice (Ex.P/7) was issued within the period as prescribed in Section 138
of Negotiable Instruments Act. On above grounds, it is urged that learned
trial Court has wrongly dismissed petitioner's complainant and has acquitted
respondent of the offence under Section 138 of Negotiable Instruments Act.
With respect to aforesaid, learned counsel for the petitioner has referred and
relied upon SivaKumar Vs. Natarajan (2009) 13 SCC 623. On above
grounds, it is urged that leave to appeal be granted to petitioner/appellant.
3. Heard on the question of leave to appeal and perused record of the
case.
4. Perusal of record of the case, especially, impugned judgment,
reveals that learned trial Court has dismissed petitioner's complaint solely on
the ground that petitioner did not issue demand notice to respondent within
30 days from the date of receipt of information with respect to dishonour of
the cheque, as provided under Section 138(b) of the Negotiable Instruments
Act.
5. Hence, the issue before this Court is whether, even prima-facie, it
stands established from record that the petitioner issued demand notice to the
respondent within 30 days from the date of receipt of information regarding
the dishonour of the cheque, as required, under Section 138(b) of the
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Negotiable Instruments Act.
6. With respect to aforesaid, para-5 of examination-in-chief of
petitioner is relevant which as under:-
" .........fnuakd 06-10-2010 dks nsuk cSad }kjk eq>s
fcuk Hkqxrku fd;s pSdksa dks bl Vhi ds lkFk okfil
iznku fd;s x;s ds mDr pSd vi;kZIr fuf/k@^^VkbZVy
@vdkm.V fjDok;MZ@VkbZfVy vkQ vdkWm.V jkWax ^^
gksus ds dkj.k vuknfjr @okfil gks x;s --------- "
7 . Further, from perusal of petitioner's testimony, it is evident that
petitioner has not mentioned in his deposition that he received information
with respect to dishonour of cheque on 02.11.2010 as mentioned by learned
counsel for the applicant in his submissions.
8. Further, from testimony of Sanjay Risodkar, complainant (PW-2),
it is evident that he has not specifically stated in his testimony, the date on
which the petitioner received information with respect to dishonour of
cheque.
9. So far as Ex.P/9 is concerned, learned trial Court in para-12 has held
that the complainant failed to prove his signature on (Ex.P/9). Further, date
mentioned in Ex.P/9 is not clearly visible. Trial Court has also held that
complainant has himself admitted that he received information on
06.10.2010 with respect to dishonour of cheque. Therefore, no contrary
pleadings/evidence is admissible. Learned trial Court has also clearly held
that complainant has sent demand notice on 09.11.2010 and this fact has
been admitted by learned counsel for the petitioner in his submissions also.
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10. Hence, prima-facie , it is not established that petitioner received
information with respect to dishonour of cheque on 02.11.2010.
11. Thus, if the period of 30 days is calculated from 06.10.2010, then,
it stands clearly established that petitioner did not send the demand notice to
the respondent within 30 days from the date of receipt of information with
respect to dishonour of cheque, as provided under Section 138(b) of the
Negotiable Instruments Act.
12. Hence, in view of aforesaid, prima-facie, there appears to be no
illegality in the judgment of acquittal passed by the learned trial Court.
Hence, no leave to appeal can be granted to petitioner under Section 378(4)
of Cr.P.C.
13. In view of discussion in the foregoing paras, petition filed by the
petitioner is hereby dismissed.
(ACHAL KUMAR PALIWAL)
JUDGE
vai
