TMI Blog2021 (3) TMI 597X X X X Extracts X X X X X X X X Extracts X X X X ..... r the proviso (c) to Section 138 of Negotiable Instruments Act, 1881 which clearly provides that the cause of action arises upon expiry of 15 days from the date of receipt of the cheque bouncing notice - In absence of the specific date regarding service of cheque bouncing notice, the finding of the learned trial court on the basis of presumption that the legal notice dated 29.02.2008 was received by the accused-petitioner till 2 March, 2008 is perverse and cannot be sustained in the eyes of law. This Court is of the considered view that both the learned courts below have erred in holding that the notice dated 29.02.2008 was presumed to have been served by 02.03.2008 and accordingly the Complaint was maintainable on 18.03.2008. Accordingly, this Court holds that the Complaint filed before expiry of the statutory period 15 days from the date of deemed service of the demand notice upon the petitioner regarding the dishonour of the cheque was premature in view of the fact that the cause of action for filing the Complaint had not arisen on 18.03.2008 and therefore, the Complaint itself was not legally maintainable. The petitioner is acquitted from the accusation thereunder and he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel appearing on behalf of the Opposite Party No.1-State submitted that there is no illegality or perversity in the impugned judgments and accordingly, the same do not call for any interference. He also submitted that inspite of repeated opportunities to compromise the case out of court, no joint compromise petition has been filed and accordingly, the present case does not call for any interference. However, he submitted that if any amount has been paid in furtherance of the so-called compromise, the same may be adjusted. Findings of this Court 8. After hearing the learned counsel for the parties and going through the judgments passed by the learned courts below and the lower court records of the case, this Court finds that on 18.03.2008, the Complainant presented a Complaint before the court of the learned Chief Judicial Magistrate, Hazaribag alleging inter-alia that the Complainant had given a loan of ₹ 1,50,000/- to the petitioner and to return the loan amount, the petitioner issued a cheque of ₹ 1,50,000/- on 28.01.2008 and when the Complainant presented the cheque for its encashment, it was dishonoured by the bank due to insufficient fund. He again pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period. According to complainant, the said cheque was bounced due to insufficient fund. In his support complainant proved bank memo dt. 19.02.2008 which proved as Ext.-2/2. I have perused the Ext.-2/2 and found that the said cheque was bounced due to insufficient fund. According to the complainant, after that on 29.02.08, a legal notice was issued against the accused. Legal notice is proved as Ext.-3. I have perused the legal notice and found that there is a specific demand made by the complainant against the Ext.-1. The said notice was sent by registry slip, registry slip is proved as Ext.-4, registry slip bears dt. 29.02.08. I have perused the registry slip and record and found that the accused is also belonging from Distt.- Hazaribag, so it may be presumed that the said notice was received by the accused till 2 March, 2008. So, the complainant was bound to wait up to 17.03.2008 and from the record, it appears that complainant waited 15 days and after that on 18.03.2008, this case was filed. On these aforesaid points, defence tried to take several contradictions, but failed. During statement taken u/s. 313 Cr.P.C., accused admitted that the complainant is L.I.C. Agent and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to pay a compensation of ₹ 1,50,000/- to the Complainant/Respondent No. 2. 16. This Court finds that the learned appellate court recorded findings that the learned trial court has elaborately dealt with the requirements / ingredients / procedure enshrined under Section 138 Negotiable Instrument Act and has given a definite finding on all the ingredients and procedure and has further recorded that the learned trial court has thoroughly scrutinized the period of notices, presenting of cheque, dishonouring of the same and issuance of notice on behalf of Complainant, etc. in a very meticulous manner and the learned appellate court found no infirmities in the judgment passed by the learned trial court. 17. This Court finds that C.W.-1 is the Complainant of the case and he deposed that he has filed the complaint case against the petitioner and he got acquaintance with the petitioner 42 years ago and on 11.01.2008, he gave ₹ 1,00,000/- through cheque and ₹ 50,000/- in cash, total ₹ 1,50,000/-, as friendly loan to the petitioner and when he demanded the money, the petitioner issued Cheque No.343586 to him on 28.01.2008 and when he presented the cheque o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh registered cover can be drawn only after expiry of 30 days from the date of issuance of notice as has been held by the Hon'ble Supreme Court in the judgment passed in the case of Subodh S. Salaskar vs. Jayprakash M. Sah and Another) reported in (2008) 13 SCC 689. In the said judgment, the notice was sent through speed post and although the actual date of service of notice was not known, the Complainant proceeded on the basis that the same was served within the reasonable period. It was held that if the presumption of notice within the reasonable period is raised, the deemed service at best can be taken to be 30 days from the date of its issuance and the accused was required to make payment in terms of the said notice within 15 days thereafter and the complaint petition therefore could have been filed after expiry of 15 days given to the accused for payment of money after receipt of notice. 22. The Hon'ble Supreme Court in the Judgment passed in the case of Yogendra Pratap Singh vs. Savitri Pandey and Another reported in (2014) 10 SCC 713 again dealt with the law regarding filing of complaint case under section 138 of Negotiable Instruments Act, 1881, in Paragraphs- 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the offence under Section 138 of the NI Act could be completed if all the above components are satisfied. 34. Insofar as the present reference is concerned, the debate broadly centres around clause (c) of the proviso to Section 138 of the NI Act. The requirement of clause (c) of the proviso is that the drawer of the cheque must have failed to make the payment of the cheque amount to the payee within 15 days of the receipt of the notice. Clause (c) of the proviso offers a total period of 15 days to the drawer from the date of receipt of the notice to make payment of the cheque amount on its dishonour. 35. Can an offence under Section 138 of the NI Act be said to have been committed when the period provided in clause (c) of the proviso has not expired? Section 2(d) of the Code defines complaint . According to this definition, complaint means any allegation made orally or in writing to a Magistrate with a view to taking his action against a person who has committed an offence. Commission of an offence is a sine qua non for filing a complaint and for taking cognizance of such offence. A bare reading of the provision contained in clause (c) of the proviso makes it clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on the drawer/accused has elapsed. We have no doubt that all the five essential features of Section 138 of the NI Act, as noted in the judgment of this Court in Kusum Ingots Alloys Ltd. and which we have approved, must be satisfied for a complaint to be filed under Section 138. If the period prescribed in clause (c) of the proviso to Section 138 has not expired, there is no commission of an offence nor accrual of cause of action for filing of complaint under Section 138 of the NI Act. 37. We, therefore, do not approve the view taken by this Court in Narsingh Das Tapadia and so also the judgments of various High Courts following Narsingh Das Tapadia that if the complaint under Section 138 is filed before expiry of 15 days from the date on which notice has been served on the drawer/accused, the same is premature and if on the date of taking cognizance, a period of 15 days from the date of service of notice on the drawer/accused has expired, such complaint was legally maintainable and, hence, the same is overruled. 38. Rather, the view taken by this Court in Sarav Investment Financial Consultancy wherein this Court held that service of notice in terms of Section 138 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elf was not legally maintainable. 26. In view of the aforesaid findings, both the impugned judgments passed by the learned courts below are hereby set aside and the petitioner is acquitted from the accusation thereunder and he is discharged from the liability of his bail bond. 27. So far as the right of the Complainant / Opposite Party No.2 to file a fresh Complaint is concerned, the Complainant is at liberty to avail his remedy in accordance with law in the light of the observations made by the Hon'ble Supreme Court in Paragraph No. 41 of the Judgment passed in the case of Yogendra Pratap Singh (supra). 28. Accordingly, with the aforesaid findings and observations, the present criminal revision petition is hereby allowed. 29. Pending interlocutory application, if any, is dismissed as not pressed. Appreciation for Amicus Curiae and Payment: 30. This Court observes that vide order dated 08.11.2019, Ms. Sunita Kumari, Advocate was appointed as Amicus Curiae in this case by this Court. This Court records its appreciation for the valuable assistance accorded by the learned Amicus Curiae in final disposal of this case. The Secretary, Jharkhand High Court Legal Serv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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