TMI Blog2021 (1) TMI 661X X X X Extracts X X X X X X X X Extracts X X X X ..... of notice is the date of endorsement of refusal 10.04.2007 is well reasoned order on the point of date of refusal of notice. Accordingly, the finding of the learned lower appellate court that the date of refusal of the notice was 2.4.07 is perverse and is set-aside and it is held that the date of refusal of the notice by the accused is 10.04.2007 and not 02.04.2007. If the date of refusal of notice is held to be 10.04.2007 and not 02.04.2007 then, Whether the Complaint filed on 17.04.2007 was premature due non-fulfillment of condition prescribed under Clause (c) of the proviso to Section 138 of the Negotiable Instruments Act, 1881 and therefore, the Complaint was not legally maintainable? - HELD THAT:- This Court is of the considered view that in the case of refusal to receive the demand notice also, the cause of action to file the Complaint would not arise unless the statutory period of 15 days from the date of refusal to receive the demand notice has expired - This Court finds that the learned trial court has held the Complaint maintainable on the basis that after refusal to receive the legal notice on 10.04.2007, the Complaint was filed on 17.04.2007, but summon was issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 5. The learned counsel appearing on behalf of the petitioner submitted that two cheques, both dated 19.03.2007, are involved in this case, one for an amount of ₹ 60,000/- and another for an amount of ₹ 50,000/-, total being ₹ 1,10,000/. While giving the relevant dates, he submitted that both the cheques were presented and dishonored on the same date for insufficient fund which was communicated vide two separate memos dated 21.03.2007. The legal notice dated 26.03.2007 was sent through registered post on 26.03.2007, but it was returned back to the sender with an endorsement of refusal of the postal man dated 10.04.2007. He further submitted that the Opposite Party No.2 instead of waiting for expiry of 15 days from 10.04.2007 filed the Complaint case on 17.04.2007. 6. The learned counsel for the petitioner further submitted that the point for consideration before this Court is that the Complaint itself was premature and not maintainable, inasmuch as, the statutory period for filing the Complaint under Section 138 of the Negotiable Instruments Act, 1881 had not expired. He relied upon the Judgment passed by the Hon'ble Supreme Court in the case of Yogen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2007. Arguments on behalf of the Opposite Party No.2 9. The learned counsel appearing on behalf of the Opposite Party No.2 opposed the prayer made on behalf of the petitioner and submitted that both the learned courts below have held that the Complaint was not pre-mature and accordingly, there is no scope for interference in revisional jurisdiction. Without prejudice to the aforesaid contention, he further submitted that in view of the observations made by the Hon'ble Supreme Court in the judgment passed in the case of Yogendra Pratap Singh (supra), the right of the Opposite Party No.2 to file a fresh Complaint may be reserved and appropriate observation may be given to that effect in case this Court ultimately finds that the Complaint filed on 17.04.2007 was a pre-mature Complaint. Findings of this Court 10. After hearing the learned counsel for the parties and going through the impugned judgments as well as the lower court records of the case, this Court finds that on 17.04.2007, the Complainant presented a Complaint before the court of the learned Chief Judicial Magistrate at Jamshedpur alleging inter- alia that the Complainant and the petitioner were well kno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -10, as under: 10. I have carefully scrutinized the entire evidence on record. So far the prosecution case is concerned, both the cheques are dated 19.3.07 which were presented for encashment within the period of its validity which is evident from both the bank memos, Ext. 2 and 2/1 and both the cheques were bounced owing to insufficiency of fund which came to the notice of the complainant by the bank memo dt. 21.3.07. Legal notice has been sent to the accused on 26.3.07 which was refused by the accused on 10.4.07 and the case has been filed on 17.4.07 and in view of several decisions of the Hon'ble Supreme Court and High Courts, refusal by the accused to receive notice amount to service of notice and so far the factor of filing of the case as pre- mature is concerned, the accused no doubt refused to receive the legal notice on 10.4.07 and the case has been filed on 17.4.07, but summon has been issued against the accused on 12.9.07 which is much after the lapse of 15 days and apart from these facts, the undertaking given by the accused to the effect of making payment of the cheque amount to the complainant in installment is also instrumental in establishing guilt of the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case by the learned counsel appearing on behalf of the petitioner is as under: a. Whether the finding of the learned lower appellate court that the date of refusal of the notice was 2.4.07 itself is perverse as the endorsement of refusal by the postal peon was dated 10.04.07? b. If the date of refusal of notice is held to be 10.04.2007 and not 02.04.2007 then, Whether the Complaint filed on 17.04.2007 was premature due non-fulfillment of condition prescribed under Clause (c) of the proviso to Section 138 of the Negotiable Instruments Act, 1881 and therefore, the Complaint was not legally maintainable? 18. This Court finds that the Complainant sent the legal notice dated 26.03.2007 with A/D by registered post to the petitioner on 26.03.2007 which was returned back to the Complainant with the endorsement of Refusal dated 10.04.2007 of the postal peon on the envelope. Point no a. 19. This Court finds that the learned appellate court has held the Complaint maintainable on the basis that the envelope of notice shows that postal man went to the house of petitioner on 02.04.2007, 03.04.2007 and 09.04.2007 and ultimately, on 10.4.2007, notice was returned back to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd (c). The offence under Section 138 is made effective only on fulfilment of the eventualities contained in clauses (a), (b) and (c) of the proviso. For completion of an offence under Section 138 of the NI Act, not only the satisfaction of the ingredients of offence set out in the main part of the provision is necessary, but it is also imperative that all the three eventualities mentioned in clauses (a), (b) and (c) of the proviso are satisfied. Mere issuance of a cheque and dishonour thereof would not constitute an offence by itself under Section 138. 31. Section 138 of the NI Act has been analysed by this Court in Kusum Ingots Alloys Ltd. wherein this Court said that the following ingredients are required to be satisfied for making out a case under Section 138 of the NI Act: (SCC p. 753, para 10) (i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability; (ii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f prematurity of the complaint where it is filed before the expiry of 15 days from the date on which notice has been served on him, it is no complaint at all under law. As a matter of fact, Section 142 of the NI Act, inter alia, creates a legal bar on the court from taking cognizance of an offence under Section 138 except upon a written complaint. Since a complaint filed under Section 138 of the NI Act before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint in the eye of the law, obviously, no cognizance of an offence can be taken on the basis of such complaint. Merely because at the time of taking cognizance by the court, the period of 15 days has expired from the date on which notice has been served on the drawer/accused, the court is not clothed with the jurisdiction to take cognizance of an offence under Section 138 on a complaint filed before the expiry of 15 days from the date of receipt of notice by the drawer of the cheque. 36. A complaint filed before the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intained against the drawer of the cheque before the expiry of 15 days from the date of receipt of notice because the drawer/accused cannot be said to have committed any offence until then. We approve the decision of this Court in Sarav Investment Financial Consultancy and also the judgments of the High Courts which have taken the view following this judgment that the complaint under Section 138 of the NI Act filed before the expiry of 15 days of service of notice could not be treated as a complaint in the eye of law and criminal proceedings initiated on such complaint are liable to be quashed. 22. This Court finds that the law has been well settled by the Hon'ble Supreme Court in the aforesaid judgment that the cause of action for filing a Complaint under Section 138 of the Negotiable Instruments Act would not arise before expiry of 15 days from the date of service of notice on the accused. 23. This Court further finds that there is no provision under the Negotiable Instruments Act, 1881 enabling curtailment of the statutory period of 15 days provided for making payment in the case of refusal to pay before expiry of 15 days from service of the notice of cheque dishon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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