Rajasthan High Court - Jodhpur

Munesh Sharma vs State Of Rajasthan on 30 March, 2022

Bench: Pushpendra Singh Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Leave To Appeal No. 331/2019

Munesh Sharma S/o Shri Meghraj Ji Sharma, Aged About 45 Years, By Caste Dadhich Barhmin, R/o Simarthwala Bera, Mandore Police Station, Mandore, District Jodhpur Mertro.

----Appellant Versus

1. State Of Rajasthan, Through P.p.

2. Surya Prakash Sharma S/o Shri Om Prakash Sharma, By Caste Brahmin, R/o Amarpura, Behind Ganganagar Sugar Mills, Nearby Purana Post Office, Mandore Police Station, Mandore, District Jodhpur.

                                                                 ----Respondents


For Appellant(s)          :     Mr. Surya Prakash Sharma
For Respondent(s)         :     Mr. N.S. Bhati PP

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

30/03/2022

1. In the 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 the Court, for the safety

of all concerned.

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

following reliefs:

"1. this leave to appeal may kindly be granted and the memo of leave may kindly be treated as memo of appeal.

2. the Judgment impugned dated 13.3.2018 passed by the learned court below may kindly be set aside and the respondent be convicted for the offences as

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charged by allowing the complaint of the complainant as prayed."

3. Learned counsel for the petitioner submits that the matter is

covered by the judgment rendered by this Court in Dhanraj Vs.

Abhay Singh (S.B. Criminal Leave To Appeal No. 212/2021,

decided on 29.03.2022), which reads as under:

"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 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

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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), 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 12th 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

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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 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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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.

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'."

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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 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

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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 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 12 th 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."

4. This Court observes that in the present case,as is reflected

from the impugned order dated 13.03.2019, the accused -

respondent had issued a cheque, bearing cheque no. 179300, in

favour of the complainant - appellant, which was dishonored and

returned with the remark "Account Closed". And that, the

notice was sent to the accused - respondent by the complainant -

appellant, which he refused to accept. Thereafter, the complainant

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- appellant filed a complaint on the 13 th day i.e. 25.04.2012, after

serving the notice from the date of refusal of acceptance of said

notice, by the accused - respondent, which was presented

prematurely instead of after the completion of prescribed