2022 (9) TMI 59 - HC - Indian Laws

Complaint dismissed as premature under Sec. 138 of Negotiable Instruments Act. Cognizance order set aside.

The court held that the complaint was prematurely filed under Section 138 of the Negotiable Instruments Act, as it was lodged before the expiration of the ... Dishonor of Cheque - rebuttal of presumption - deemed service of notice - interpretation clause ‘c’ of the proviso to section 138 of N.I. Act - HELD THAT:- On perusal of clause (c) of section 138 N.I.Act, it is crystal clear that the drawer of the cheque failed for payment of cheque amount within 15 days of the receipt of the notice, then only the case can be filed. Once the statutory provision has been provided in a statute it is required to be followed and that is the mandate of law to be followed the provision of that statute. Admittedly in the case in hand, the required notice was issued on 01.03.2016 which is not in dispute, however, the case has been filed on 21.03.2016, there is strict bar of filing the case in view of clause(c) of section 138 of N.I.Act before expiry of 15 days and if it is so, no cognizance of offence be taken on the basis of such complaint. The Court comes to the conclusion that the case was filed prematurely. Looking into clause (c) of section 138 of the said Act, that the cognizance order which filled up in a format suggest that there is non-application of judicial mind - Petition disposed off. Issues Involved:1. Premature filing of the complaint under Section 138 of the Negotiable Instruments Act (N.I. Act).2. Application of judicial mind in taking cognizance.3. Presumption of service of notice under Section 27 of the General Clauses Act and Section 114 of the Evidence Act.Detailed Analysis:1. Premature Filing of the Complaint:The petitioner argued that the complaint was filed prematurely, violating Section 138(c) of the N.I. Act, which mandates a 15-day period for the drawer to make payment after receiving notice. The complaint was filed on 21.03.2016, only 20 days after the notice was sent on 01.03.2016, without confirming the exact date of receipt. The court emphasized that under Section 138(c), the drawer must fail to pay within 15 days of receiving the notice before a complaint can be filed. Citing 'Yogendra Singh v. Savitry Pandey,' the court held that a complaint filed before the expiry of the 15-day period is not maintainable, and no cognizance can be taken on such a complaint.2. Application of Judicial Mind in Taking Cognizance:The court observed that the cognizance order was filled in a format with blank spaces for specific details, indicating non-application of judicial mind. The court found this method insufficient and emphasized that judicial discretion must be exercised when taking cognizance of an offense. The format used suggested a mechanical process rather than a considered judicial decision.3. Presumption of Service of Notice:The respondent argued that once a notice is issued, it is presumed to be served under Section 27 of the General Clauses Act and Section 114 of the Evidence Act. The court referred to several precedents, including 'Ajeet Seeds Ltd. v. K. Gopala Krishnaiah' and 'N. Parameshwaran Unni v. G. Kannan,' which support the presumption of service when a notice is sent to the correct address by registered post. However, the court noted that the issue in the current case was not about the presumption of service but the premature filing of the complaint.Conclusion:The court concluded that the complaint was filed prematurely, violating the statutory requirement of Section 138(c) of the N.I. Act. Consequently, the cognizance order dated 17.08.2016 was set aside due to non-application of judicial mind. The court allowed the respondent (O.P.No.2) to file a fresh complaint within one month from the date of the decision, as per the guidance provided in 'Yogendra Singh v. Savitry Pandey.' If the fresh complaint is delayed, the respondent can seek condonation of delay under Section 142(b) of the N.I. Act. The petition (Cr.M.P. No.1626 of 2022) was disposed of with these observations and directions.