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of <h1>HC sets aside appellate judgment in cheque dishonour case under section 138 NI Act within limitation period</h1> <h3>Sunil Kumar Bhagat Versus The State of Jharkhand, Sunil Kumar Gupta</h3> The HC set aside the appellate court's judgment in a dishonour of cheque case under section 138 of the N.I. Act. The court held that legal notice issued ... Dishonour of Cheque - time limitation - complaint case instituted under section 138 of N.I. Act within the period of 30 days from the date of issuance of legal notice demanding the cheque amount from its drawer is pre-matured or not - necessity to make averments in the complaint about the service of notice to the accused or accused has evaded or deliberately not replied to the legal notice - HELD THAT:- The condition precedent for taking cognizance as prescribed under section 138 of proviso (c) and 142(b) are satisfied. Admittedly, notice was sent by the speed post on 07.01.2001 and the complaint was filed on 20.04.2001. Even if the presumption of deemed service within a reasonable time of 30 days (i.e., 16.02.2001) is taken, the accused was required to make payment within 15 days i.e. on or about 02.03.2001. The complaint petition which should have been filed on 02.04.2001 was filed on 20.04.2001 was clearly barred by the limitation. It was further observed that proviso appended to section 138 of N.I Act limits the applicability of the main provisions. Unless the conditions precedent for taking cognizance the offence under section 138 of NI Act is satisfied, the court will have no jurisdiction to take cognizance. The complaint petition in view of section 142 (b) of the NI Act was required to be filed within one month from the date on which the cause of action arose in terms of the clause (c) of the proviso to section 138 of the NI Act. The legal notice admittedly was issued on 17.01.2001. It was sent by the speed post. It was supposed to be served within a couple of days. Although the actual date of service of notice was allegedly not known, the complaint proceeded on the basis that the same was served within a reasonable period. The complaint petition admittedly was filed on 20.04.2001. The notice having been sent on 17.01.2001, if the presumption of the service of notice within a reasonable time is raised, it should be deemed to have been served at best within the period of 30 days from the date of issuance of thereof. In the situation, the complaint was hopelessly time barred. It is crystal clear that in the instant case, legal notice was issued on 19.12.2007 and the complaint was instituted just within one month i.e. 18.01.2008. As per presumptions under section 114 of Illustration(f) of the Evidence Act and section 27 of General Clauses Act, the service of notice upon the accused within a reasonable time is to be deemed and anything otherwise has to be rebutted by the accused by leading evidence. The complainant is not required to prove the service of notice on accused before institution of the case. In the instant case, the drawer has not denied about receipt of copy of complaint with summons and he appeared and contested the case throughout without raising any other substantial issues absolving him from the legal liability. Accordingly, a dishonest drawer of cheque can’t get a premium from his own default. It is not out of place to observe that the learned trial courts must always adhere to the aims and object of giving notice to accused and examine the contents of complaint petition at the very stage of its registration and ensure that all legal formalities are complied with as prescribed under section 138 & 142 of N.I. Act, so as to alleviate any technical issue to crop up at the trial. The judgment passed by the learned Appellate Court cannot be sustained in view of the legal principles propounded by the Hon’ble Apex Court as discussed above, which is hereby set aside. The case is remitted back to learned Appellate Court to re-hear the appeal and pass a fresh judgment after giving opportunity of hearing to the parties. Both parties are directed to appear before the concerned Appellate Court within six weeks from the date of this order - this revision application is allowed. Issues Involved:1. Whether the complaint case instituted under section 138 of N.I. Act within the period of 30 days from the date of issuance of legal notice demanding the cheque amount from its drawer is pre-maturedRs.2. Whether it is necessary to make averments in the complaint about the service of notice to the accused or accused has evaded or deliberately not replied to the legal noticeRs.Detailed Analysis:Issue 1: Premature Institution of ComplaintThe appellate court set aside the conviction and sentence of the accused on the grounds that the complaint was filed prematurely. According to the appellate court, the complaint was instituted within one month from the date of sending the legal notice without proof of its receipt and providing 15 days' time to the drawer, which is against the statutory provision constituting no offence under section 138 of N.I. Act. The appellate court emphasized that the presumption of service of notice within 30 days may be raised in terms of section 27 of the General Clauses Act, 1897, and after the expiry of 30 days, the appellant is required to make payment within 15 days. Hence, the complaint filed on 18.01.2008 was deemed premature.Issue 2: Requirement of Averments about Service of NoticeThe appellate court found that there was no material on record showing the date of service of the legal notice upon the appellant to furnish the cause of action under the proviso(c) of section 138 of N.I. Act and provision of section 142 of the said Act. The acknowledgment card had not been proved to show the date of receipt of notice, and the postman had not been examined. Therefore, the court concluded that no notice had been served upon the appellant as neither its acknowledgment nor any other document had been brought on record to show that notice was served upon the appellant.Legal Provisions and Precedents:- Section 138 of N.I. Act: Specifies the conditions under which the dishonor of a cheque constitutes an offence.- Section 142 of N.I. Act: Details the cognizance of offences, including the time frame within which a complaint must be filed.- Section 27 of General Clauses Act, 1897: Presumption of service of notice when sent to the correct address by registered post.- Section 114 of Evidence Act, 1872: Enables the court to presume that communication sent by post would have been delivered at the address of the addressee.Relevant Case Laws:1. Ajeet Seeds Limited vs. K. Gopala Krishnaiah (2014) 12 SCC 685: The Supreme Court held that it is not necessary to aver in the complaint that the notice issued under section 138 of N.I. Act was served upon the accused. The presumption of service of notice is deemed unless and until the contrary is proved by the addressee.2. C.C. Alavi Haji vs. Palapetty Muhammed and Anr. (2007) 6 SCC 555: Clarified that when the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of section 138 proviso (b) of N.I. Act stands complied with.3. Subodh S. Salaskar vs. Jayprakash M. Shah and Anr. (2008) 13 SCC 689: The complaint was quashed as it was filed beyond the period of limitation without an application for condonation of delay.4. Yogendra Pratap Singh vs. Savitri Pandey and Anr. (2014) 10 SCC 713: Held that any complaint filed before the expiry of 15 days from the date of receipt of notice under section 138 proviso(c) of the Act is non est.Conclusion:The High Court found that the appellate court failed to appreciate the entire aspects of the case in true perspectives and without adverting to the provisions of law as well as principles propounded by the Supreme Court. The judgment of the appellate court was set aside, and the case was remitted back to the appellate court to re-hear the appeal and pass a fresh judgment after giving an opportunity of hearing to the parties. The High Court emphasized that the complainant is not required to prove the service of notice on the accused before the institution of the case, and a dishonest drawer of a cheque cannot get a premium from his own default.
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