TMI Blog2020 (5) TMI 314X X X X Extracts X X X X X X X X Extracts X X X X ..... s not disputed that neither in the complaint nor in the statement of the complainant recorded under Section 200 Cr.P.C., is it mentioned as to on which dates, he has demanded for refund of his money from the applicant, on which date he had presented the alleged cheques in the bank for encashment - The complainant has also not disclosed the date on which he had sent the legal notice to the applicant through his advocate and the date of service of notice. The complainant has also disclosed the date i.e. 3rd July, 2014 on which the dishonoured cheques along with return memo showing insufficient balance amount in the account of the applicant, has been received. Thus, it is not clear that one of main ingredient i.e. date of service of notice from which the date the cause of action arises i.e. date of bank return memo as per the provisions of Section 138 N.I. Act is completely missing in the present case - As per Section 138 read with Section 142 N.I. Act, the period of complaint being filed from the date of service of notice i.e. within one month is also not complied in the present case. In the impugned summoning order also the concerned Magistrate has only recorded the date on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lendi Raiwaly Construction (Engineering Ltd.) and for completion of the said work on time and on speed, which requires a lot of labor, resources, machines, etc. to speed up the work to complete on an adjusted basis. To fulfill all those works, the applicant needed to assign work to another person or firm and pay their expenses according to labor under which the applicant made a proposal to opposite party no. 2. to do the above work speedily and also assured that the applicant has more big tasks and his client talked him to complete the said work quickly and in lieu of this, the applicant requested opposite party no.2 for arranging machine, labor, capital and other expenses and also assured him to give work order of his company. Accepting the proposal, the applicant, opposite party no.2 agreed to work with him. Opposite party no.2 requested the applicant that because there are two marriages in his house, he would arrange the machine, money and everything but he would reach on the spot rarely. Being busy in the said marriages, opposite party no.2 could hardly reach the spot but he had arranged machine, money and everything whichever was required as per his assurance. In that way oppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been registered as Complaint Case No. 1546 of 2014 (Om Construction Vs. M/s. Komal Construction), under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the N.I. Act ), Police Station-Obra, District-Sonbhadra. After recording statement of the complainant under Section 200 Cr.P.C, the court below has passed an order dated 16th September, 2014 and when the applicant could not appear before the court below, the court below has passed an order dated 21st March, 2015 issuing non-bailable warrant against the applicant. It is against these two orders that the present application under Section 482 Cr.P.C. has been filed. 6. On the matter being taken up, a Coordinate Bench of this Court passed following order: Heard learned counsel for the applicant and leaned AGA. Learned counsel for the applicant has submitted that the complaint as well as the affidavits filed in support of the complaint is completely silent about any notice or its service upon the applicant as required under Section 138 of Negotiable Instruments Act, 1881. Submissions made by learned counsel for the applicants, prima facie, appear to have substance and a prima facie c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er submits that even the statement of opposite party no.2 which has been given on an affidavit, does not depict the allegations of sending notice or making a demand from the applicant. The statement like the complaint is absolutely silent about the factum of sending legal notice and failure on the part of the applicant to repay the amount, which is necessary ingredient for constituting an offence under Section 138 N.I. Act. The court below only on the basis of such complaint and statement of the complainant has committed error in passing the summoning order against applicant, which is also illegal. It is further submitted that in the impugned order passed by the court below dated 16th September, 2014, it has been mentioned that cheques were dishonoured on 3rd July, 2014 and the legal notice, which was sent on 14th July, 2014. However, the said legal notice depicts that the said notice is a registered legal notice sent by the opposite party no.-2 through his advocate, namely, Ravindra Nath Pandey on 14th July, 2014. Even otherwise, the purported notice is vague and does not clearly depict the exact amount, which the applicant had to pay to the complainant. Neither in the complain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2 have opposed the submissions made by the learned counsel for the applicant by contending that there is no illegality or infirmity in the order of summoning of the applicant passed by the concerned Magistrate. Learned counsel for the State and the learned counsel for opposite party no.2, therefore, submits that the present application is liable to be dismissed. 10. I have considered the submissions made by the learned counsel for the applicants and have gone through the records of the present application. 11. Before expressing any opinion on the merits of the case set up by both the parties, it would be worthwhile to reproduce Sections 138, 139 142 of the Negotiable Instrument Act, which are quoted herein-below: 138. Dishonour of cheque for insufficiency, etc., of funds in the account. -Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 138. 12. From the above, it is manifestly clear that a dishonour would constitute an offence only if the cheque is returned by the bank unpaid either because the amount of money standing to the credit of the drawer s account is insufficient to honour the cheque or that the amount exceeds the amount arranged to be paid from that account by an agreement with that bank. Now, for an offence under Section 138 NI Act, it is essential that the cheque must have been issued in discharge of legal debt or liability by accused on an account maintained by him with a bank and on presentation of such cheque for encashment within its period of validity, the cheque must have been returned unpaid. The payee of the cheque must have issued legal notice of demand within 30 days from the receipt of the information by him from the bank regarding such dishonor and where the drawer of the cheque fails to make the payment within 15 days of the receipt of the aforesaid legal demand notice, cause of action under Section 138 NI Act arises. 13. From the Chapter XVII comprising Sections 138 to 142 of the Negotiable Instruments Act, which was introduced in statute by Act 66 of 1988, it is also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ils to make the payment within fifteen days of the receipt of the notice, a cause of action arises for prosecuting him for the offence punishable under Section 138 of the Act. Section 142 provides that the court shall take cognizance of an offence punishable under Section 138 of the Act upon receipt of a complaint in writing made by the payee or, as the case may be, the holder in due course of the cheque. Such complaint must be made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138. However, discretion is given to the court to take cognizance of the complaint even after the prescribed period, if the complainant satisfies the court that he had sufficient cause for not making the complaint within such period. 15. persons who purported to discharge their liability by issuing cheques without really intending to do so, which was demonstrated by the fact that there was no sufficient balance in the account to discharge the liability. Apart from civil liability, a criminal liability was imposed on such unscrupulous drawers of cheques. The prosecution, however, was made subject to certain conditions. With a view to avoid unnec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etc. If in each such case the law is understood to mean that there has been no service of notice, it would completely defeat the very purpose of the Act. It would then be very easy for an unscrupulous and dishonest drawer of a cheque to make himself scarce for sometime after issuing the cheque so that the requisite statutory notice can never be served upon him and consequently he can never be prosecuted. There is good authority to support the proposition that once the complainant, the payee of the cheque, issues notice to the drawer of the cheque, the cause of action to file a complaint arises on the expiry of the period prescribed for payment by the drawer of the cheque. If he does not file a complaint within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138 of the Act, his complaint gets barred by time. Thus, a person who can dodge the postman for about a month or two, or a person who can get a fake endorsement made regarding his non availability can successfully avoid his prosecution because the payee is bound to issue notice to him within a period of 30 days from the date of receipt of information from the bank regarding th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 138 of the Act. 19. In Yogendra Pratap Singh (Supra) , which has also been relied upon by the learned counsel for the applicant, in paragraph nos. 36 to 41, the Apex Court has observed as follows: 36. A complaint filed before expiry of 15 days from the date on which notice has been served on drawer/accused cannot be said to disclose the cause of action in terms of clause (c) of the proviso to Section 138 and upon such complaint which does not disclose the cause of action the Court is not competent to take cognizance. A conjoint reading of Section 138, which defines as to when and under what circumstances an offence can be said to have been committed, with Section 142(b) of the NI Act, that reiterates the position of the point of time when the cause of action has arisen, leaves no manner of doubt that no offence can be said to have been committed unless and until the period of 15 days, as prescribed under clause (c) of the proviso to Section 138, has, in fact, elapsed. Therefore, a Court is barred in law from taking cognizance of such complaint. It is not open to the Court to take cognizance of such a complaint merely because on the date of considerati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted to present the complaint again notwithstanding the fact that the period of one month stipulated under Section 142(b) for the filing of such a complaint has expired. 41. Section 142 of the NI Act prescribes the mode and so also the time within which a complaint for an offence under Section 138 of the NI Act can be filed. A complaint made under Section 138 by the payee or the holder in due course of the cheque has to be in writing and needs to be made within one month from the date on which the cause of action has arisen under clause (c) of the proviso to Section 138. The period of one month under Section 142(b) begins from the date on which the cause of action has arisen under clause (c) of the proviso to Section 138. However, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within the prescribed period of one month, a complaint may be taken by the Court after the prescribed period. Now, since our answer to question (i) is in the negative, we observe that the payee or the holder in due course of the cheque may file a fresh complaint within one month from the date of decision in the criminal case and, in that event, delay in fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n offence under Section 138 is that inspite of the demand notice referred to above, the drawer of the cheque failed to make the payment within a period of 15 days from the date of the receipt of the demand. A fact which the complainant can only assert but not prove, the burden would essentially be on the drawer of the cheque to prove that he had in fact made the payment pursuant to the demand. 27. By the nature of the offence under Section 138 of the Act, the first ingredient constituting the offence is the fact that a person drew a cheque. The identity of the drawer of the cheque is necessarily required to be known to the complainant (payee) and needs investigation and would not normally be in dispute unless the person who is alleged to have drawn a cheque disputes that very fact. The other facts required to be proved for securing the punishment of the person who drew a cheque that eventually got dishonoured is that the payee of the cheque did in fact comply with each one of the steps contemplated under Section 138 of THE ACT before initiating prosecution. Because it is already held by this Court that failure to comply with any one of the steps contemplated under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the trial by evidence that the endorsement is not correct and that the addressee, namely the drawer of the cheque, with knowledge of the notice had deliberately avoided to receive notice. Therefore, it would be pre- mature at the stage of issuance of process, to move the High Court for quashing of the proceeding under Section 482 of the Code of Criminal Procedure. The question as to whether the service of notice has been fraudulently refused by unscrupulous means is a question of fact to be decided on the basis of evidence. In such a case the High Court ought not to exercise its jurisdiction under Section 482 of the Code of Criminal Procedure. 17. In (1999) 7 SCC 510 : K. Bhaskaran vs. Sankaran Vaidhyan Balan and another, the drawee had presented a cheque issued by the drawer but the same was dishonoured. A notice was sent by registered post but the same was returned with the endorsement that the addressee was found absent on 3rd , 4th and 5th February, 1993 and intimation was served on addressee's house on 6th February, 2003. Thereafter the postal article remained unclaimed till 15th February, 1993 and it was returned to the sender with a further endorsement unc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addressee as unclaimed such date of return to the sender would be the commencing date in reckoning the period of 15 days contemplated in clause (c) to the proviso of Section 138 of the Act. This would be without prejudice to the right of the drawer of the cheque to show that he had no knowledge that the notice was brought to his address. Since the appellant did not attempt to discharge the burden to rebut the aforesaid presumption, the appeal was dismissed by this Court. The aforesaid decision is significant for two reasons. Firstly it was held that the principle incorporated in Section 27 of the General Clauses Act would apply in a case where the sender despatched the notice by post with the correct address written on it, but that would be without prejudice to the right of the drawer of the cheque to show that he had no knowledge that the notice was brought to his address. 19................................. Section 27 of the General Clauses Act deals with the presumption of service of a letter sent by post. The despatcher of a notice has, therefore, a right to insist upon and claim the benefit of such a presumption. But as the presumption is rebuttable one, he has two ..... X X X X Extracts X X X X X X X X Extracts X X X X
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