Rajasthan High Court - Jodhpur
Sahiram vs Brijlal on 26 April, 2022
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Crml Leave To Appeal No. 419/2019
Sahiram S/o Shri Surjaram, Aged About 44 Years, By Caste
Nayak, R/o Village 9 Q, Post Office Mirzewala, Tehsil And District
Sriganganagar (Raj.).
----Appellant
Versus
Brijlal S/o Shri Surjaram, Aged About 44 Years, By Caste Nayak,
R/o Village 9 Q, Post Office Mirzewala, Tehsil And District
Sriganganagar (Raj.).
----Respondent
For Appellant(s) : Mr. Himmat Jagga
For Respondent(s) :
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order
26/04/2022
In wake of instant surge in COVID-19 cases and spread of its
highly infectious Omicron variant, abundant caution is being
maintained, while hearing the matters in Court, for the safety of
all concerned.
This criminal leave to appeal has been preferred claiming for
the following reliefs :-
"It is, therefore, respectfully prayed that this application for
leave to appeal may kindly be accepted and the application for
leave to appeal may kindly be treated as appeal against acquittal
and the judgment impugned dated 02.08.2019 passed by the
learned Judicial Magistrate, Sri Ganganagar, District Sri
Ganganagar in Regular Criminal Case No.73 of 2015 (CIS
No.297 of 2015) Sahiram Vs. Brijlal may kindly be quashed and
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(2 of 3) [CRLLA-419/2019]
set aside and the accused-respondent be convicted for the
offence under Section 138 of the Negotiable Instruments Act."
This Court observes that the mandatory period of notice was
not adhered to by complainant and the complaint was filed before
15 days, which is the mandatory period.
Precedent law rendered by Hon'ble Apex Court in the matter
of Alavi Haji, C.C. Vs. Palapetty Muhammed and Ors.
(Criminal Appeal No.767/2007) decided on 18.05.2007, is
applicable in the matter.
Relevant portion of which reads as follows:-
"17. It is also to be borne in mind that the requirement of giving of
notice is a clear departure from the rule of Criminal Law, where
there is no stipulation of giving of a notice before filing a complaint.
Any drawer who claims that he did not receive the notice sent by
post, can, within 15 days of receipt of summons from the court in
respect of the complaint under Section 138 of the Act, make payment
of the cheque amount and submit to the Court that he had made
payment within 15 days of receipt of summons (by receiving a copy
of complaint with the summons) and, therefore, the complaint is
liable to be rejected. A person who does not pay within 15 days of
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, by ignoring statutory presumption to the contrary under Section
27 of the G.C. Act and Section 114 of the Evidence Act. In our view,
any other interpretation of the proviso would defeat the very object
of the legislation. As observed in Bhaskarans case (supra), if the
giving of notice in the context of Clause (b) of the proviso was the
same as the receipt of notice a trickster cheque drawer would get the
premium to avoid receiving the notice by adopting different
strategies and escape from legal consequences of Section 138 of the
Act."
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(3 of 3) [CRLLA-419/2019]
This Court is of the considered opinion that the period of
fifteen days as prescribed under Section 138(c) of Act of 1881 is a
window available to the drawer of Negotiable Instrument to enable
him to satisfy the legally enforceable debt and to avoid criminal
proceedings.
The Legislature was conscious when 15 days time was given
as mandatory period under Section 138(c) to ensure that the
drawer gets a fair deal in the shape of opportunity to satisfy the
legally enforceable debt in case he desires to.
It is noted that normally in criminal law notice is not
mandatory but in the Negotiable Instruments Act a special
provision has been made with mandatory impact so that the
drawer can avoid criminal proceedings against him by making
payment of the legally enforceable debt. The Negotiable
Instruments Act is akin to civil law in many aspects but criminal
culpability has been carved out only to ensure proper credence to
the instrument.
The judgment of Hon'ble Apex Court in Alavi Haji (supra)
clearly stipulates the necessity of Section 138(c).
In light of the above made observations, the leave to appeal
does not call for any interference by this Court. The same is, thus,
dismissed.
(DR.PUSHPENDRA SINGH BHATI), J.
66-Sanjay/-
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