2020 (7) TMI 165

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....ndra Kumar Singh for connecting himself through video conferencing, he did not join. It was also reported that in spite of repeated calls made to him, he did not respond to any of the calls. It was further reported that there was no communication from Mr. Shailendra Kumar Singh seeking any adjournment in the present case. Accordingly, this court heard the learned counsel for the petitioner and learned counsel for the State for the purposes of disposal of the present case. Thus, nobody appeared on behalf of opposite party No. 2 to assist this court. 4. This Criminal Revision is directed against the judgement dated 07.02.2014, passed by learned court of Additional Sessions Judge-VI, Civil Court, Hazaribag, in Cr. Appeal No. 122 of 2008 whereby the learned Additional Sessions Judge has been pleased to affirm the judgment and order dated 15.07.2008 passed by the learned Judicial Magistrate, 1st Class, Hazaribag in C. Case No. 466 of 2006 (T.R. No. 1313 of 2008) and has convicted the petitioner under Section 138 of the Negotiable Instruments Act and has sentenced him to undergo simple imprisonment for two years and pay compensation of Rs. 2 lacs to the complainant. Arguments of th....

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....rverse and fit to be set-aside. 10.Learned counsel has relied upon the judgment by the Hon'ble Supreme Court reported in (2013) 1 SCC 177 and submits that this judgement has been considered and followed in the case of Kamlesh Kumar versus State of Bihar reported in (2014) Eastern India Criminal Cases (2) 183 (SC). Arguments of the opposite party state. 11.Learned counsel appearing on behalf of the opposite party State on the other hand does not dispute the fact that timeline provided in Section 138 of the Negotiable Instruments Act, 1881 are required to be followed and condition precedent for filing of the complaint case for alleged offence under Section 138 of the Negotiable Instruments Act, 1881 are also required to be satisfied. Findings of this court. 12. In the judgement passed by the Hon'ble Supreme Court in the case of Yogendra Pratap Singh v. Savitri Pandey, (2014) 10 SCC 713, two questions were formulated for consideration :- (i) Can cognizance of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 be taken on the basis of a complaint filed before the expiry of the period of 15 days stipulated in the notice required ....

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....payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; (v) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice." 14.The question no. (i) formulated by the Hon'ble supreme court has been answered in para 34 to 38 and it has been held that the complaint under section 138 of the aforesaid act of 1881 filed before expiry of 15 days of service of notice could not be treated as a complaint in the eye of law and criminal proceedings initiated on such complaint are liable to be quashed. Para 34,37 and 38 of the aforesaid judgements are quoted as under:- "34. Insofar as the present reference is concerned, the debate broadly centres around clause (c) of the proviso to Section 138 of the NI Act. The requirement of clause (c) of the proviso is that the drawer of the cheque must have failed to make the payment of the cheque amount to the payee within 15 days of the receipt of the notice. Clause....

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....ll important and stipulates three distinct conditions precedent, which must be satisfied before the dishonour of a cheque can constitute an offence and become punishable. The first condition is that the cheque ought to have been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. The second condition is that the payee or the holder in due course of the cheque, as the case may be, ought to make a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. The third condition is that the drawer of such a cheque should have failed to make payment of the said amount of money 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. It is only upon the satisfaction of all the three conditions mentioned above and enumerated under the proviso to Section 138 as clauses (a), (b) and (c) thereof that an offence under Section 138 can be said to have bee....

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....ue to make the payment after receiving the notice demanding payment but still upheld the conviction of the petitioner. 20.The learned lower appellate court recorded the findings as under: - "It is apparent from evidence that the complainant has filed this case within ten days of issuance of registered notice. The date of service of notice upon the accused is not available in evidence. Now a question arises as to whether it vitiates the trial? In section 138 of the N.I. Act the Legislature has clearly stated that for the dishonoured cheque drawer shall be liable for conviction if the demand is not met within 15 days of the receipt of notice. To my considered opinion, the sole purpose to give notice for demand is to give the drawer of cheque an opportunity to absolve from his liability u/s 138 N.I. Act, if he prefers to make the payment of the amount concerned by the cheque within 15 days of receiving the notice. In this case, the complainant has claimed that after receiving the notice, the accused met with him on 10.05.2006 and directed him to wait for 2-3 months for money. The complainant (C.W.-1) at para-1 of his examination-in-chief has stated when the cheque....