2021 (3) TMI 597 - HC - Indian Laws

Petitioner acquitted due to invalid service of legal notice in Section 138 case. Judgment set aside.

The High Court acquitted the petitioner in a case involving a conviction under Section 138 of the Negotiable Instruments Act, 1881. The court found that ... Dishonor of Cheque - insufficient funds - Section 138 of the Negotiable Instruments Act - service of notice - rebuttal of presumption - HELD THAT:- This Court finds that both the learned courts below have failed to consider that there is no evidence available on the records of the case which suggests that the legal notice dated 29.02.2008 sent under registered cover was ever served upon the petitioner. The learned courts below have proceeded on the premise 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 i.e. on the third day when counted from the date of issuance of notice. This Court is of the considered view that the date of service of notice of cheque bouncing is a material date for the purposes of calculation of time line giving a cause of action for filing a Complaint under Section 138 of the Negotiable Instruments Act, 1881 and it is for the Complainant to prove that the cause of action arose as per the provisions under 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 is discharged from the liability of his bail bond - present criminal revision petition is hereby allowed. Issues Involved:1. Validity of the conviction under Section 138 of the Negotiable Instruments Act, 1881.2. Service of legal notice regarding cheque dishonor.3. Calculation of the timeline for filing a complaint under Section 138 of the Negotiable Instruments Act, 1881.Detailed Analysis:1. Validity of the Conviction under Section 138 of the Negotiable Instruments Act, 1881:The petitioner was initially convicted by the trial court under Section 138 of the Negotiable Instruments Act, 1881, and sentenced to simple imprisonment for one year and six months, along with a compensation payment of Rs. 1,50,000 to the complainant. This conviction was upheld by the appellate court, which reduced the sentence to one year while maintaining the compensation amount. The petitioner challenged this decision in the present criminal revision petition.2. Service of Legal Notice Regarding Cheque Dishonor:The complainant issued a legal notice on 29.02.2008 after the cheque was dishonored multiple times due to insufficient funds. However, the courts below presumed that the notice was received by the petitioner by 02.03.2008, based on the assumption that the petitioner resided in the same district. The High Court found this presumption to be perverse, noting that there was no evidence to suggest that the notice was actually served on the petitioner. The court emphasized that the date of service of the notice is crucial for calculating the timeline for filing a complaint under Section 138 of the Negotiable Instruments Act, 1881.3. Calculation of the Timeline for Filing a Complaint under Section 138 of the Negotiable Instruments Act, 1881:The High Court referred to the Supreme Court judgments in Subodh S. Salaskar vs. Jayprakash M. Sah and Another and Yogendra Pratap Singh vs. Savitri Pandey and Another, which clarified that the presumption of service of notice can only be drawn after 30 days from the date of issuance. The court held that the cause of action for filing a complaint arises 15 days after the service of the notice. In this case, the complaint was filed on 18.03.2008, which was premature as the deemed service of the notice would be on 30.03.2008, making the complaint not maintainable.Conclusion:The High Court set aside the judgments of the lower courts, acquitted the petitioner, and discharged him from the liability of his bail bond. The court also noted that the complainant is at liberty to file a fresh complaint in accordance with the law. The criminal revision petition was allowed, and pending interlocutory applications were dismissed. The court appreciated the assistance provided by the amicus curiae and directed the payment of her legal remuneration.Additional Notes:The court directed the lower court records to be sent back and communicated the judgment to the concerned authorities.