TMI Blog2021 (10) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment 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. This Court finds that the law has been well settled by the aforesaid judgment that the cause of action for filing a Complaint under Section 138 of the Negotiable Instruments Act cannot arise before expiry of 15 days from the date of service of notice upon the accused - this Court finds that in absence of the specific date regarding service of notice, the demand notice sent on 17.02.2006 under registered post would be deemed to be served upon the petitioner on 18.03.2006 i.e. only after expiry of 30 days from the date of issuance of the demand notice and the cause of action for filing the Complaint would have arisen on expiry of 15 days thereafter i.e. only after 02.04.2006 and the Complaint could have been filed thereafter, but the Complaint in the present case was filed on 17.03.2006. This Court is of the considered view that both the learned courts below have erred in holding that the Complaint was maintainable - this Court holds that the Complaint filed before expir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd in case of default in payment of fine, to undergo Simple Imprisonment for further one month and had further directed the petitioner to pay compensation of ₹ 19,50,000/- to the Complainant under Section 357 of Cr.P.C. However, the learned trial court held that Section 420 of the Indian Penal Code is not attracted and established in the present case. Arguments on behalf of the petitioner 6. The learned counsel appearing on behalf of the petitioner relied upon the following judgments:- 2012 (1) JLJR 220 Prahlad Rai Agrawal -vs- The State of Jharkhand, 2012 (1) JLJR 48 Hari Ram Sariwala @ Hari Ram -vs- The State of Jharkhand, 2011 (3) JLJR 311 Shahid Ali -vs- State of Jharkhand Anr. and 2008 (2) JLJR 22 (SC) K. Prakashan -vs- P.K Surenderan. 7. The learned counsel submitted that the learned courts below have not properly appreciated the evidences on record and the presumption, that the cheque was drawn against a liability, has been duly rebutted by the petitioner in the light of preponderance of probability. He submitted that the demand cheques were issued by the petitioner for the purpose of admission in Law College, but the same were misused by the complainant and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmation from the petitioner, but all the cheques were dishonoured by the banker of the petitioner. The cheques for ₹ 5 lacs was dishonoured on the ground of insufficient fund in the account of the petitioner and the two cheques of ₹ 7,25,000/- were twice dishonoured i.e. on 25.01.2006 and 02.02.2006 on the ground of account closed as disclosed in the return memo. The Complainant informed about the status of the three cheques to the petitioner, but the petitioner did not take appropriate steps to discharge the said liability. Thereafter, the Complainant issued legal notice in the name of the petitioner on 17.02.2006 requesting him to discharge the cheque amounts. The petitioner did not discharge the said liability of the cheques. Thereafter, the Complainant preferred the Complaint Petition on 17.03.2006. 11. After enquiry, on 18.07.2006, process under Section 138 of the Negotiable Instruments Act and Section 420 of the Indian Penal Code was issued against the petitioner and after appearance of the petitioner and recording of evidence before charge on 08.04.2009, the charge under Section 138 of the Negotiable Instruments Act and Section 420 of the Indian Penal Code was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed whereas one of the cheques was dishonoured on the ground of insufficient fund other two cheques were dishonoured since the accused closed the account. It is established law that when the cheque is dishonoured on the ground of insufficient fund or closure of the account prior to the deposit of the cheque it is presumption under law that the cheque was issued to discharge legally enforceable debt or liability of the person who had issued the cheque if otherwise contrary is proved as defined u/s 139 of N.I. Act. 20. It appears from perusal of the oral testimony of DW-1 and DW-2 along with exhibits filed before the court that defence has made an attempt to establish that the cheque were issued as security amount for getting admission in law college at Pune. However, I find that the defence has failed to contradict or rebut the presumption laid down u/s 139 of N.I. Act. In this case also considering the facts and circumstances above discussed I find that the complainant himself has admitted that he was guarantor to the money which was advanced to the accused. When the accused failed to discharge his liability, the complainant being the guarantor, to the said money deposited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd, postal receipt (Ext.-4) shows that a notice was sent through registered post to the petitioner on 17.02.2006 and Ext.-3 shows that a legal notice was sent to the petitioner on 17.2.2006 and this fact has been corroborated by C.W.-1 in Para-5 and he has not been cross- examined on this point. On the point of service of notice, the learned appellate court recorded that D.W.-1 during cross- examination in Para-11 admits that the address written upon Ext.-3 (legal notice and his name and address are correct and since summon was properly addressed and it was sent through registered post, it will be treated as a valid service and so, the complainant has complied with the provision under Section 138(b) of the Negotiable Instruments Act regarding the service of summons before filing the case. 18. On the point of presentation of the cheques, the learned appellate court in Para-14 recorded that the three cheques are marked as Ext.-1, 1/1, and 5 bank slips have been marked as Ext.-2, 2/1, 2/2, 2/3 and 2/4 which indicates that Cheque No.136432 dated 23.11.2005 for ₹ 5 lacs was presented before the Federal Bank twice, firstly, on 18.01.2006 and secondly on 25.01.2006, but the che ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provision contained under Section 357(3) of Cr.P.C. and the criminal appeal was partly allowed and partly dismissed. 22. This Court finds that C.W.-1 is the Complainant of the case and he deposed that the petitioner was known to him for the last eight years and elder brother of the petitioner namely, Munni Prasad works at Agricultural University. He alongwith Jai Kishore Singh and Dr. K.D. Sharma gave ₹ 20 lacs to the petitioner at his instance. The money was paid to the petitioner at his instance by K.D. Sharma and Jai Kishore Singh. The petitioner had issued the cheque drawn on Federal Bank and thereafter two cheques for a sum of ₹ 7,25,000/- were also issued upon Ranchi Kshetriya Gramin Bank. He exhibited all the three cheques as Exhibits-1, 1/1 and 1/2 respectively. He further deposed that he had deposited the said cheque in Allahabad Bank. It was disclosed in the return memo that the cheques were dishonoured due to insufficient fund. First time the cheque was deposited on 18.05.2006. Subsequently, the cheques were again deposited with the banker on 25.01.2006. Return memo dated 18.01.2006 and 25.01.2006 were issued to the complainant and the same has been exh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. 26. The Hon'ble Supreme Court in its Judgment passed in the case of Yogendra Pratap Singh vs. Savitri Pandey and Another reported in (2014) 10 SCC 713 has dealt with the law regarding deemed service of notice upon the accused in Paragraphs- 30 to 38 which read as under: 30. Section 138 of the NI Act comprises of the main provision which defines the ingredients of the offence and the punishment that would follow in the event of such an offence having been committed. Appended to this section is also a proviso which has three clauses viz. (a), (b) and (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 provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our. 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 clear that no complaint can be filed for an offence under Section 138 of the NI Act unless the period of 15 days has elapsed. Any complaint filed before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint at all in the eye of the law. It is not the question of 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 und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 proviso (b) of the NI Act was a part of the cause of action for lodging the complaint and communication to the accused about the fact of dishonouring of the cheque and calling upon to pay the amount within 15 days was imperative in character, commends itself to us. As noticed by us earlier, no complaint can be maintained 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 H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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