2017 (5) TMI 1431

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....6-3 of 2013 and convicted and sentenced the petitioner to undergo simple imprisonment for one month and to pay a sum of `1,00,000/- as compensation under Section 138 of the Negotiable Instruments Act, 1881 (for short Act). 2. Bereft of any unnecessary detail, it is not in dispute that the complainant received a returning memo on 2.1.2013 and on 3.1.2013 he issued legal notice under the Act which was received by the accused only on 12.1.2013, but the complaint came to be filed on 23.1.2013 i.e. before the expiry of 15 days. 3. The moot question, therefore, is whether an offence under Section 138 of the Act can be said to have been committed when the period provided for under Section 138 Clause (c) of the proviso has not expired. 4. ....

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....to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability." 5. Somewhat similar issue came up before the three Judges Bench of the Hon'ble Supreme Court in Yogendra Pratap Singh vs. Savitri Pandey and another (2014) 10 SCC 713 and in paras 35 and 36 of the judgment, it was held as under: "35. Can an offence under Section 138 of the NI Act be said to have been committed when the period provided in clause (c) of the proviso has not expired? Section 2(d) of the Code defines 'complaint'. According to this definition, complai....

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.... offence under Section 138 on a complaint filed before the expiry of 15 days from the date of receipt of notice by the drawer of the cheque. 36. A complaint filed before the expiry of 15 days from the date on which notice has been served on drawer/accused cannot be said to disclose the cause of action in terms of clause (c) of the proviso to Section 138 and upon such complaint which does not disclose the cause of action the Court is not competent to take cognizance. A conjoint reading of Section 138, which defines as to when and under what circumstances an offence can be said to have been committed, with Section 142(b) of the NI Act, that reiterates the position of the point of time when the cause of action has arisen, leaves no ma....