TaxTMI 
TaxTMI 
TaxTMI 
2021 (1) TMI 661
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....d 11.09.2009 passed by the learned Judicial Magistrate, 1st Class, Jamshedpur in C/1 Case No. 605 of 2007 / T. R. No. 401/2009 whereby and whereunder the petitioner was held guilty and convicted under Section 138 of the Negotiable Instruments Act, 1881 and was sentenced to undergo Rigorous Imprisonment for one year and was directed to pay a sum of Rs. 1,10,000/- to the Complainant towards compensation in terms of Section 357(3) of the Cr.P.C.. It was further directed that period of custody already undergone as an under-trial prisoner shall be set off in terms of Section 428 of the Cr. P. C. Arguments on behalf of the petitioner 5. The learned counsel appearing on behalf of the petitioner submitted that two cheques, both dated 19.03.2007, are involved in this case, one for an amount of Rs. 60,000/- and another for an amount of Rs. 50,000/-, total being Rs. 1,10,000/. While giving the relevant dates, he submitted that both the cheques were presented and dishonored on the same date for insufficient fund which was communicated vide two separate memos dated 21.03.2007. The legal notice dated 26.03.2007 was sent through registered post on 26.03.2007, but it was returned back to the sen....
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....s to the house of the petitioner on 02.04.2007, 03.04.2007, 09.04.2007. 8. The learned counsel further submitted that the reason to reject the plea of pre-mature Complaint has been dealt with differently by the learned trial court and the learned appellate court and therefore, it cannot be said that there is concurrent finding on this point. He also submitted that there is specific and clear evidence on record that the refusal was recorded by the postal peon with a date i.e. 10.04.2007 and therefore, the date of refusal is 10.04.2007 and accordingly, the Complaint was pre-mature having been filed on 17.04.2007. Arguments on behalf of the Opposite Party No.2 9. The learned counsel appearing on behalf of the Opposite Party No.2 opposed the prayer made on behalf of the petitioner and submitted that both the learned courts below have held that the Complaint was not pre-mature and accordingly, there is no scope for interference in revisional jurisdiction. Without prejudice to the aforesaid contention, he further submitted that in view of the observations made by the Hon'ble Supreme Court in the judgment passed in the case of Yogendra Pratap Singh (supra), the right of the Opposit....
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....nt of the postal peon to the effect of refusal as Exhibit-5, A/D without service as Exhibit-6 and two Carbon copies of Bank Memos as Exhibits- 7 and 7/1 respectively. 14. On 23.05.2009, the statements of the petitioner were recorded under Section 313 Cr.P.C. wherein he said that he had not issued the cheques and he is innocent. The petitioner did not adduce any oral or documentary evidence in his defence. 15. This Court finds that the learned trial court considered the oral and documentary evidences adduced on behalf of the Complainant and recorded its findings in Para-10, as under: "10. I have carefully scrutinized the entire evidence on record. So far the prosecution case is concerned, both the cheques are dated 19.3.07 which were presented for encashment within the period of its validity which is evident from both the bank memos, Ext. 2 and 2/1 and both the cheques were bounced owing to insufficiency of fund which came to the notice of the complainant by the bank memo dt. 21.3.07. Legal notice has been sent to the accused on 26.3.07 which was refused by the accused on 10.4.07 and the case has been filed on 17.4.07 and in view of several decisions of the Hon'ble Supreme C....
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....s that postal man went to the house of appellant on 2.4.07, 3.4.07 and 9.4.07 and ultimately, on 10.4.07, notice was returned back to the complainant mentioning refusal. It appears that several attempts were taken by postal man for service of the notice from 2.4.07 itself and ultimately, it was returned on 10.4.07. Endorsement of refusal has been made by the postal man mentioning his signature on 10.4.07. It is not the date of refusal by appellant, rather it is the date on which notice was returned." 17. The question raised in the present case by the learned counsel appearing on behalf of the petitioner is as under: a. Whether the finding of the learned lower appellate court that the date of refusal of the notice was 2.4.07 itself is perverse as the endorsement of refusal by the postal peon was dated 10.04.07? b. If the date of refusal of notice is held to be 10.04.2007 and not 02.04.2007 then, Whether the Complaint filed on 17.04.2007 was premature due non-fulfillment of condition prescribed under Clause (c) of the proviso to Section 138 of the Negotiable Instruments Act, 1881 and therefore, the Complaint was not legally maintainable?" 18. This Court finds that the Com....
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....e holder of the cheque, as the case may be, within 15 days of the receipt of the demand notice. 21. The Hon'ble Supreme Court in Paragraph Nos. 30 to 38 of the Judgment passed in the case of Yogendra Pratap Singh (supra) has held as under: "30. Section 138 of the NI Act comprises of the main provision which defines the ingredients of the offence and the punishment that would follow in the event of such an offence having been committed. Appended to this Section is also a proviso which has three clauses viz. (a), (b) and (c). The offence under Section 138 is made effective only on fulfilment of the eventualities contained in clauses (a), (b) and (c) of the proviso. For completion of an offence under Section 138 of the NI Act, not only the satisfaction of the ingredients of offence set out in the main part of the provision is necessary, but it is also imperative that all the three eventualities mentioned in clauses (a), (b) and (c) of the proviso are satisfied. Mere issuance of a cheque and dishonour thereof would not constitute an offence by itself under Section 138. 31. Section 138 of the NI Act has been analysed by this Court in Kusum Ingots & Alloys Ltd. wherein this Cou....
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....ission of an offence is a sine qua non for filing a complaint and for taking cognizance of such offence. A bare reading of the provision contained in clause (c) of the proviso makes it clear that no complaint can be filed for an offence under Section 138 of the NI Act unless the period of 15 days has elapsed. Any complaint filed before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint at all in the eye of the law. It is not the question of prematurity of the complaint where it is filed before the expiry of 15 days from the date on which notice has been served on him, it is no complaint at all under law. As a matter of fact, Section 142 of the NI Act, inter alia, creates a legal bar on the court from taking cognizance of an offence under Section 138 except upon a written complaint. Since a complaint filed under Section 138 of the NI Act before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint in the eye of the law, obviously, no cognizance of an offence can be taken on the basis of such complaint. Merely because at the time of taking cognizance by the court, the pe....
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....e same is overruled. 38. Rather, the view taken by this Court in Sarav Investment & Financial Consultancy wherein this Court held that service of notice in terms of Section 138 proviso (b) of the NI Act was a part of the cause of action for lodging the complaint and communication to the accused about the fact of dishonouring of the cheque and calling upon to pay the amount within 15 days was imperative in character, commends itself to us. As noticed by us earlier, no complaint can be maintained against the drawer of the cheque before the expiry of 15 days from the date of receipt of notice because the drawer/accused cannot be said to have committed any offence until then. We approve the decision of this Court in Sarav Investment & Financial Consultancy and also the judgments of the High Courts which have taken the view following this judgment that the complaint under Section 138 of the NI Act filed before the 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." 22. This Court finds that the law has been well settled by the Hon'ble Supreme Court in the afore....