2017 (7) TMI 578 - HC - Indian Laws

Prematurely Filed Complaints Dismissed under Section 138

The court quashed private complaints filed prematurely before the expiration of the 15-day notice period required under Section 138 of the Negotiable ... Dishonor of cheque - NI Act - whether after dishonouring of the cheque and on issuing the notice by payee to the drawer for repayment of the amount of the cheque, if it is returned unclaimed then what would be the date of receipt of the said notice to count the period of 15 days as specified under Section 138 of the N.I. Act? - Held that:- A loose cheque was given by the drawer to the payee which was dishonoured. Within a period of 30 days from the date of dishonouring, the notice was issued on 20.12.2007 to the drawer by post. The Post Office of the drawer’s address gave first intimation on 24.12.2007 and when it remained unclaimed for seven days as per the noting dated 1.1.2008 pleaded in private complaint No.233/08 and on 3.1.2008 pleaded in private complaint No.234/08, it was returned to the payee. It is not in dispute that both the complaints were filed on 14.1.2008, however, from the date it was shown to be unclaimed by the postal department i.e. 1.1.2008 and 3.1.2008 and the complaints have been filed prior to expiry of the 15 days of the said notice. However, in the said context, prosecutability of the private complaint has been objected by filing a preliminary objection by the trial Court which is rejected by the orders impugned, which were confirmed in revision. Section 27 of the General Clauses Act indicates expression “served”, “give” or “sent” while section 138 (c) of the N.I. Act indicates the giving of notice and accrual of a cause of action, if the amount is not paid within 15 days after receipt of the notice, therefore, for the purpose of Section 138, the Court ought to construe the word “give” as “receive”. It should not be construed as specified under the General Clauses Act “served”, “give” or “sent”. In view of the foregoing discussion in my considered opinion, the order passed by the trial court rejecting the preliminary objection filed by the petitioner, upheld by the revisional Court stands set aside. The preliminary objection filed by the petitioner is hereby upheld. Consequently, both the private complaints filed by the respondent are hereby quashed. Issues Involved:1. Quashment of private complaints due to premature filing.2. Interpretation of the notice period under Section 138 of the Negotiable Instruments Act (N.I. Act).3. Applicability of judgments from higher courts regarding notice period and service.Detailed Analysis:1. Quashment of Private Complaints Due to Premature Filing:The petitioners sought the quashment of private complaints No.233/2008 and 234/2008 filed by the respondent/complainant, arguing that the complaints were filed prematurely, before the expiry of the mandatory 15-day notice period stipulated under Section 138(c) of the N.I. Act. The complaints were filed on 14.01.2008, while the notices were returned unclaimed on 01.01.2008 and 03.01.2008, respectively. The court held that filing complaints before the expiry of the 15-day period rendered them non-prosecutable, thus setting aside the orders of the trial and revisional courts and dismissing the complaints as premature.2. Interpretation of the Notice Period under Section 138 of the N.I. Act:The court examined the relevant provisions of Section 138 of the N.I. Act, which mandates that the payee must give a notice to the drawer within 30 days of the cheque being dishonored, and the drawer must make the payment within 15 days of receiving the notice. The court emphasized that the offence is deemed committed upon dishonoring the cheque, but prosecutability depends on the conditions in clauses (a), (b), and (c) of the proviso to Section 138 being met. The court reiterated that the 15-day notice period is crucial for the cause of action to prosecute under Section 138.3. Applicability of Judgments from Higher Courts Regarding Notice Period and Service:The petitioners relied on the Supreme Court's judgment in *Yogendra Pratap Singh vs. Savitri Pandey* to argue that a complaint filed before the expiry of the 15-day notice period is not prosecutable. The court agreed, noting that the complaints were filed prematurely. The respondent's counsel cited *K. Bhaskaran vs. Sankaran Vaidhyan* to argue that the date of intimation by the postal department should be considered the date of receipt of notice. However, the court distinguished the facts of the present case from *K. Bhaskaran*, noting that the notices were returned unclaimed, and thus, the 15-day period had not expired when the complaints were filed. The court also referenced *Agrawal Medical Agencies vs. Govind Prasad*, but found it inapplicable as it pertained to the M.P. Accommodation Control Act and not the N.I. Act.Conclusion:The court concluded that the complaints were filed prematurely before the expiry of the mandatory 15-day notice period, rendering them non-prosecutable. The orders of the trial and revisional courts were set aside, and the complaints were dismissed. However, the court allowed the complainant to file fresh complaints within 30 days from the date of the order, in accordance with the judgment in *Yogendra Pratap Singh*.