2022 (3) TMI 1049 - HC - Indian Laws

Petitioner's Appeal Dismissed, Opportunity for Fresh Complaint with Delay Condonation

The High Court upheld the appellate court's judgment, dismissing the petitioner's request for leave to appeal against the acquittal. The petitioner was ... Dishonor of Cheque - insufficient funds - discharge of legally enforceable debt or not - time limit for issuance of demand notice - whether the complaint petition was filed within the prescribed period or it was not a complaint in the legal sense as it was filed prior to the date on which cause of action arose? - HELD THAT:- Keeping in view the ratio laid down in the case of SUBODH S. SALASKAR VERSUS. JAYPRAKASH M. SHAH & ANR [2008 (8) TMI 795 - SUPREME COURT], when a demand notice was sent through the Advocate of the petitioner on 18.01.2013 and neither the acknowledgment nor the envelope containing demand notice returned back, then the due service date would be thirty days from the date of issuance of legal notice which falls on 17.02.2013 and as per the clause-(c) of 138 of the N.I. Act, the opposite party was required to make payment in terms of the said notice within fifteen days thereafter i.e. on 04.03.2013. Since the complaint petition was filed on 16.02.2013 and cognizance of offence was taken on such complaint, in view of the ratio laid down in the case of YOGENDRA PRATAP SINGH VERSUS SAVITRI PANDEY & ANR. [2014 (9) TMI 1129 - SUPREME COURT], such a complaint is no complaint in the eyes of law and no cognizance of offence can be taken up on the basis of such complaint. There are no perversity or illegality in the same - there are no reasons to grant leave to the petitioner to prefer an appeal against the order of acquittal passed by the learned Appellate Court as per impugned judgment - petition dismissed. Issues Involved:1. Validity of the complaint under Section 138 of the Negotiable Instruments Act, 1881.2. Determination of the deemed service date of the demand notice.3. Compliance with the statutory requirements under Section 138 and 142 of the N.I. Act.4. Legality of the cognizance taken by the trial court.5. Maintainability of a second complaint on the same facts.Detailed Analysis:1. Validity of the Complaint under Section 138 of the Negotiable Instruments Act, 1881:The petitioner filed a complaint under Section 138 of the N.I. Act against the opposite party for issuing a cheque that was dishonored due to insufficient funds. The trial court found the opposite party guilty and sentenced him to imprisonment and compensation. However, the appellate court acquitted the opposite party, stating that the complaint was filed prematurely, without a valid cause of action, thus vitiating the trial.2. Determination of the Deemed Service Date of the Demand Notice:The petitioner sent a demand notice to the opposite party on 18.01.2013, but neither the postal acknowledgment nor the envelope returned. The appellate court held that the petitioner needed to prove that the opposite party received the notice and had a clear fifteen days to respond, which the petitioner failed to do. The court relied on the presumption under Section 27 of the General Clauses Act, which deems service if the notice is sent to the correct address by registered post.3. Compliance with the Statutory Requirements under Section 138 and 142 of the N.I. Act:Section 138 outlines that a cheque must be presented within six months, and a demand notice must be sent within thirty days of the bank's return memo. The drawer then has fifteen days to pay the amount. Section 142 mandates that a complaint must be filed within one month of the cause of action. The appellate court found that the complaint was filed before the cause of action arose, making it invalid.4. Legality of the Cognizance Taken by the Trial Court:The appellate court concluded that the trial court's cognizance was illegal as the complaint was filed prematurely. The cognizance was taken before the opposite party had a clear fifteen days to respond to the demand notice, thus invalidating the subsequent trial.5. Maintainability of a Second Complaint on the Same Facts:The petitioner sought permission to file a fresh complaint with a delay condonation application. The court did not express an opinion but allowed the petitioner to file a new complaint within one month, subject to the magistrate's consideration of the maintainability of a second complaint based on the same facts, as per the Supreme Court's guidelines.Conclusion:The High Court upheld the appellate court's judgment, finding no illegality or perversity. The petitioner's request for leave to appeal against the acquittal was dismissed. The petitioner was granted the opportunity to file a fresh complaint with a delay condonation application, to be considered by the magistrate in accordance with the law.