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TMI Blog2021 (10) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 357 of Cr.P.C. and remanded back the case to the learned trial court to rehear the parties on the point of sentence and pass the order in terms of the law laid down by the Hon'ble Apex Court in the case of R. Vijjayan -vs- Bebi reported in AIR 2000 SC 528 and also in view of the provision contained under Section 357(3) of Cr.P.C. and the criminal appeal was partly allowed and partly dismissed. 5. The learned trial court vide Judgment of conviction and the order of sentence dated 12.08.2011 passed by the learned Judicial Magistrate, 1st Class, Ranchi in Complaint Case No. 333 of 2006 / T.R. No. 461 of 2011 had convicted the petitioner for the offence under Section 138 of the Negotiable Instruments Act and had sentenced him to undergo Simple Imprisonment for one year and fine of Rs. 2,000/- and 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 Rs. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner was known to him obtained a sum of Rs. 20 lacs through him for business to be returned as early as possible and accordingly, issued three post- dated cheques bearing no. 136432 of Federal Bank Ltd. dated 23.11.2005 for Rs. 5 lacs and two cheques were issued for Rs. 7,25,000/- each on Ranchi-Chhetriya Gramin Bank bearing nos. 449809 and 449810 dated 24.01.2006 and 30.01.2006 respectively in the name of the Complainant. It was assured to the Complainant that the cheques shall be honoured on the date of presentation. It was further stated that the Complainant was guarantor to the transaction and as such, he had the right to collect the legally enforceable debt. All the cheques were presented with the banker for their realization on the due dates after getting prior affirmation from the petitioner, but all the cheques were dishonoured by the banker of the petitioner. The cheques for Rs. 5 lacs was dishonoured on the ground of insufficient fund in the account of the petitioner and the two cheques of Rs. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d both the parties and perused the material on record. It appears from the perusal of the three cheques that they were issued in the name of the complainant. The cheques are under the signatures of the accused, factum of three cheques and signature of the accused has been duly admitted by both the parties. It is not in dispute that three cheques have been deposited with the bank within the period of its validity i.e. the cheque is of date 23.11.05, 24.01.06 and 30.01.06. All the cheques were deposited and subsequently all the three cheques were dishonoured by the bank of the accused and returned along with three separate return memos exhibited before the court as Ext-2, 2/1 and 2/2 respectively. It is also admitted fact that the three cheques were dishonoured 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 20 lacs which was received by the petitioner from Jai Kishore and Dr. K.D. Sharma and it comes within the purview of the explanation of Section 138 of the Negotiable Instruments Act as debt or liability which is legally enforceable and the complainant can be said to be the holder-in-due course of the cheques and in view of the proviso to Section 138(b) of the Negotiable Instruments Act, the complainant is entitled to file the complaint case. 17. The learned appellate court in Para-12 recorded that C.W.-1 in Para-5 deposed that he sent a demand notice through his lawyer (Ext.-3) on 17.02.2006 and he also produced the postal receipt (Ext.-4), but he has not been cross-examined on the point of service of notice. On the other hand, 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 Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t's why he cross-examined C.W.-1 (complainant) on this point and when he examined himself as witness, he gave a specific evidence on this point and denied his signature upon Ext.-5 and so, no prejudice is caused to the petitioner, if no question was asked on this point. 21. The learned appellate court confirmed the conviction of the petitioner under Section 138 of the Negotiable Instruments Act., but set aside the part of the order of sentence passed by the learned trial court whereby and whereunder the petitioner was directed to pay a compensation amount of Rs. 19,50,000/- under Section 357 of Cr.P.C. and remanded back the case to the learned trial court to rehear the parties on the point of sentence and also in view of the 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 Rs. 20 lacs to the petitioner at his instance. The mon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er registered post was ever served upon the petitioner. 25. This Court is of the view that the presumption regarding service of demand notice sent even through registered cover can be drawn only upon expiry of 30 days from the date of dispatch of notice as has been held by the Hon'ble Supreme Court in the judgment reported in (2008) 13 SCC 689 (Subodh S. Salaskar vs. Jayprakash M. Sah and Another). 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalysis. 33. In K.R. Indira, a two-Judge Bench of this Court observed 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od of 15 days from the date on which the notice has been served 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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