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2021 (3) TMI 597
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....ide Judgment dated 12.09.2013 passed by the learned Addl. Sessions Judge-V, Hazaribagh upheld the conviction of the petitioner under Section 138 of the Negotiable Instruments Act, 1881 and modified and reduced the substantive sentence to Simple Imprisonment for one year and directed the petitioner to pay a compensation of Rs. 1,50,000/- (Rupees One Lac Fifty Thousand) to the Complainant/Opposite Party No.2 and dismissed the criminal appeal. 5. The petitioner has preferred the present criminal revision petition against the Judgment passed by the learned appellate court whereby and whereunder the learned appellate court confirmed the Judgment of conviction of the petitioner passed by the learned trial court with modification of the sentence. Arguments on behalf of the Petitioner 6. Learned amicus curiae appearing on behalf of the petitioner submitted that it has been recorded in the order dated 14.03.2014 that the petitioner has already served the sentence. She further submitted that the learned trial court has wrongly accepted the notice regarding bouncing of cheque to be validly served and this aspect of the matter has not been properly considered by the learned appellate court ....
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....eque No.343586 dated 28.01.2008 as Exhibit-1, Cheque Return Bank Memo dated 28.01.2008 as Exhibit-2, Cheque Return Bank Memo dated 29.01.2008 as Exhibit-2/1, Cheque Return Bank Memo dated 19.02.2008 as Exhibit-2/2, Legal Notice dated 29.02.2008 as Exhibit-3 and the Registered Postal Receipt dated 29.02.2008 as Exhibit-4. 12. On 02.03.2009, the statements of the petitioner were recorded under Section 313 of Cr.P.C. wherein the petitioner denied the incriminating evidences put to him and claimed to be innocent and stated that the Complainant was an L.I.C. agent and the Complainant had forced him to issue the cheque at his chamber and an F.I.R. has also been lodged. The petitioner did not adduce any oral or documentary evidence in his defence. 13. This Court finds that the learned trial court considered the oral and documentary evidences adduced on behalf of the Complainant and the arguments advanced on behalf of the parties and recorded its findings in Para-10 which reads as under: "10. In this case, I have perused the record and found that the cheque which is proved as Ext.-1 bears date 28.01.08 and according to complainant, he presented the said cheque finally on 29.02.08. So t....
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.... period of notices, presenting of cheque, dishonouring of the same, issuance of notice on behalf of Complainant, etc. in a very meticulous manner. I find no infirmities in the said Judgment as to the fastening the criminal liability upon accused. The quantum of sentence has been pronounced after hearing the parties, separately, on the point of sentence. 16. One thing I have noticed that court below has directed to make payment of Rs. 1,50,000/- to the complainant / Respondent No.2 in his Judgment and Order. This can be done under the amended provisions of Section 138 Negotiable Instruments Act. But this direction necessarily shall have an impact over the substantive sentence prescribed by the court below. The court below has prescribed a substantive sentence of one year and six months. It is slightly excessive. In any view of the matter, the substantive sentence of one year shall meet the ends of justice. Therefore, I do hereby modify the substantive sentence prescribed by the court below. In other words, I confirm the conviction with modification of sentence. The modified sentence shall run as follows: - The Accused / Appellant shall have to undergo simple imprisonment for one ....
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....proceeded on the premise that the accused is also belonging from Distt. - Hazaribag, so it may be presumed that the said notice was received by the accused till 2 March, 2008 i.e. on the third day when counted from the date of issuance of notice. 20. This Court is of the considered view that the date of service of notice of cheque bouncing is a material date for the purposes of calculation of time line giving a cause of action for filing a Complaint under Section 138 of the Negotiable Instruments Act, 1881 and it is for the Complainant to prove that the cause of action arose as per the provisions under the proviso (c) to Section 138 of Negotiable Instruments Act, 1881 which clearly provides that the cause of action arises upon expiry of 15 days from the date of receipt of the cheque bouncing notice. In absence of the specific date regarding service of cheque bouncing notice, the finding of the learned trial court on the basis of presumption that the legal notice dated 29.02.2008 was received by the accused-petitioner till 2 March, 2008 is perverse and cannot be sustained in the eyes of law. 21. This Court is of the view that the presumption regarding service of notice sent throug....
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.... bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability; (ii) that cheque has 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; (iii) that cheque is returned by the bank unpaid, either because the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank; (iv) the payee or the holder in due course of the cheque makes a demand for the 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." 32. We are in agreement with the above analysis. 33. In K.R. Indira, a two-Judge Bench of this Court observed that the offence under Sect....
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....he 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 manner of doubt that no offence can be said to have been committed unless and until the period of 15 days, as prescribed under clause (c) of the proviso to Section 138, has, in fact, elapsed. Therefore, a court is barred in law from taking cognizance of such complaint. It is not open to the court to take cognizance of such a complaint merely because on the date of consideration or taking cognizance thereof a period of 15 days from the date on which the notice has been served on the drawer/accused has elapsed. ....
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....the Hon'ble Supreme Court, this Court finds that in absence of the specific date regarding service of notice, the legal notice sent on 29.02.2008 under registered cover would be deemed to be served upon the petitioner on 30.03.2008 i.e. only after expiry of 30 days from the date of issuance of the legal notice and the cause of action for filing the Complaint would have arisen on expiry of 15 days thereafter, but the Complaint in the present case was filed on 18.03.2008. Accordingly, the complaint itself was not maintainable being premature. 25. This Court is of the considered view that both the learned courts below have erred in holding that the notice dated 29.02.2008 was presumed to have been served by 02.03.2008 and accordingly the Complaint was maintainable on 18.03.2008. Accordingly, this Court holds that the Complaint filed before expiry of the statutory period 15 days from the date of deemed service of the demand notice upon the petitioner regarding the dishonour of the cheque was premature in view of the fact that the cause of action for filing the Complaint had not arisen on 18.03.2008 and therefore, the Complaint itself was not legally maintainable. 26. In view of t....