Dhanraj vs Abhay Singh
2022 Latest Caselaw 4682 Raj

(1 of 7) [CRLLA-212/2021]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Leave To Appeal No. 212/2021

Dhanraj S/o Sh. Rajhmal Ji, Aged About 76 Years, B/c Jain, R/o Jain Temple Street, Sumerpur, Dist. Pali, Power Of Attorney Holder Trilokchand Praveen Kumar General Merchant And Commission Agent, New Krishi Upaj Mandi, Sumerpur, Dist. Pali (Raj.).

----Appellant Versus Abhay Singh S/o Sh. Jodh Singh, B/c Rajput, R/o Rukhada, Tehsil Sheoganj, Dist. Sirohi (Raj.)

----Respondent

For Appellant(s) : Mr. Vivek Mathur For Respondent(s) : -

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI Order Reportable 29/03/2022

1. 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.

2. This criminal leave to appeal has been preferred claiming the

following reliefs :-

"It is, therefore, respectfully prayed that your Lordships may graciously be pleased to accept and allow this Criminal Special Leave to Appeal under Section 378(4) of Cr. P.C., and by treating this leave to appeal as appeal, the impugned order dated 27.10.2021 passed by learned trial court may kindly be set aside and the accused respondent may kindly be adequately punished for the criminal delinquency which he committed under the

(2 of 7) [CRLLA-212/2021]

provision of N.I. Act, and or the matter be remanded to the trial court to proceed against the accused respondent and pass appropriate judgment according to law."

3. The factual matrix of case in brief is that the appellant/

complainant filed a complaint under Section 138 of Negotiable

Instruments Act, 1881 (hereinafter referred to as 'Act of 1881')

against respondent-accused on 22.02.2010 before the Court of

Judicial Magistrate, Sumerpur, District Pali alleging inter-alia that

the complainant (Firm-M/s.Trilokchand Praveen Kumar) does its

business of general merchant and commission agent at New Krishi

Upaj Mandi and Shri Dhanraj is the power of attorney holder of

said Firm. The accused-respondent, who is a farmer, used to sell

his agricultural produce to the complainant-Firm, and thus, there

were business transactions between them.

4. The allegation is that on 30.03.2009, accused-respondent

took a loan of Rs.2,16,000/- from the complainant-Firm on

interest @ 2% per hundred per month, however, despite repeated

requests, the amount was not re-paid; thereafter, cheque

no.043363 of Rs.2,58,900/- drawn on Sumerpur Merchantile

Urban Cooperative Bank Ltd., Sumerpur Branch was given to the

complainant with an assurance that the same will be honoured on

being presented. The said cheque on its presentation for

encashment, was however, dishonoured by the Bank with the

remark, "insufficient funds".

5. Learned counsel for the appellant submits that the criminal

proceeding in question has culminated into acquittal of the

accused-respondent vide the impugned order passed by the trial

court, while deriving strength from the statute law (Act of 1881),

(3 of 7) [CRLLA-212/2021]

which provides that as per clause (c) of Section 138 of the Act of

1881, the provisions of that Section shall not be made applicable

unless "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 learned court below found that

such prescription of law has not been satisfied in the present case,

as the complaint in question has been preferred on 12 th day i.e.

before expiry of the mandatory period of 15 days from the date of

service of notice upon the drawer/accused.

6. Learned counsel for the appellant further submits that 15

days' period prescribed under Section 138 of the Act of 1881 is

not mandatory. Learned counsel also submits that Section 138 of

the Act of 1881 cannot be construed to defeat the legislative

intent behind enacting the Act of 1881, rather the intention of

drawer has to be seen.

7. Learned counsel for the appellant further submits that the

drawer had sufficient opportunity to satisfy the legally enforceable

debt, even before filing of the complaints; but once he failed to

discharge such lawful liability, then he has to suffer the

proceedings under Section 138 of the Act of 1881.

8. Learned counsel for the appellant draws the attention of this

Court towards the judgment 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.

Relevant portion 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

(4 of 7) [CRLLA-212/2021]

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."

9. Learned counsel for the appellant further draws the attention

of this Court towards the judgment rendered by the Hon'ble

Allahabad High Court in Ravi Dixit Vs. State of U.P. and Anr.

(Application U/s.482 No.14068 of 2020, decided on 23.09.2020).

Relevant portion of which reads as follows:-

"8. The provision of Section 138 of the Act, 1881 cannot be interpreted to mean that even if the accused refuses to make payment, the complainant cannot file a complaint. Proviso (c) of the said Act is to see the bona fide of the drawer of the cheque and is with a view to grant him a chance to make the payment.

9. In this case, the cheque was drawn by the accused on an account maintained by him with the bank. The period of 15 days is for making payment. In this case the accused did not make the payment and did not even appear before the Court below for a year. It is in the month of August, 2020 that he has approached this Court.

(5 of 7) [CRLLA-212/2021]

10. Proviso to Section 138 of the Act, 1881 does not constitute ingredients of offence punishable under Section 138. Proviso to Section 138 simply postpones the actual prosecution of the offender till such time he fails to pay the amount, then the statutory period prescribed begins for lodgement of complaint. The Parliament has granted just and proper time to give to the drawer the opportunity to pay the amount before he could be prosecuted. The offence is completed the moment the cheque is dishonoured. Refer to Dashrath Rupsingh Rathod Vs. State of Maharashtra, (2014) 9 SCC

129.

11. The judgment in Shakti Travel and Tours Vs. State of Bihar, (2002) 9 SCC 415, will not apply to the facts of this case as it is averred in the complaint that the notice was served which was replied by the accused and, therefore, it cannot be said that the issuance of summons is bad in the eye of law.

12. In the case in hand, the petitioner herein replied to the notice which goes to show that the intention of the drawer is clear that he did not wish to make the payment. Once this is clarified, should the complainant wait for the minimum period of 15 days, the answer would be 'no'."

10. Learned counsel for the appellant thereafter harped upon the

issue that notice under Section 138 of Act of 1881 was sent on

05.02.2010, but the same was refused to be taken on 10.02.2010.

11. Heard learned counsel for the appellant as well as

perused the record of the case, alongwith the judgments

cited at the Bar.

12. For the order proposed to be passed, it is not considered

necessary to issue any formal notice to the respondent.

13. 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

(6 of 7) [CRLLA-212/2021]

him to satisfy the legally enforceable debt and to avoid criminal

proceedings.

14. 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.

15. 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.

16. The judgment of Hon'ble Apex Court in Alavi Haji, C.C.

(supra) clearly stipulates the necessity of Section 138(c).

17. The judgment of Ravi Dixit (supra) rendered by the Hon'ble

Allahabad High Court is not applicable in the present case because

the fact of that case was that the drawer in acknowledgment of

notice has made a written denial of the payment and, thus, he had

exercised his option not to pay the legally enforceable debt during

the mandatory period and once such conscious decision was taken

by the drawer in response to the notice, the Legislative intention

of creating 15 days window stood satisfied.

18. In the present case, the fact admitted are that the notice

was served on 10.02.2010 and the proceedings were launched on

22.02.2010, which is 12th day of sending notice, instead of after

completion of 15 days that would have happened on 25.02.2010

(7 of 7) [CRLLA-212/2021]

and, thus, the opportunity envisaged by the Legislature for the

drawer on the completion of 15 days was cut short paving way for

derailment of the 138 proceedings.

19. The impugned order has taken note of the fact that the

proceedings were initiated on 12th day i.e. 22.02.2010 from the

service of notice and before the expiry of the mandatory period as

provided under section 138(c) and, thus, has rightly held that no

cause of action accrued to appellant while dismissing the

proceedings.

20. In view of the aforesaid observations this Court does not find

any reason to interfere in the criminal leave to appeal and thus,

the same is dismissed.

(DR.PUSHPENDRA SINGH BHATI), J.

97-Nirmala/Sanjay-

Powered by TCPDF (www.tcpdf.org)