TaxTMI 
TaxTMI 
2021 (10) TMI 760
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....06), under Section 138 of N.I. Act and was sentenced for simple imprisonment for a period of one year with a fine of Rs. 2,000/- and in default of payment of fine, he was directed to undergo further simple imprisonment for a period of three months. 6. The learned Appellate Court modified the sentence and directed that the petitioner would pay a fine of Rs. 2,10,000/- and in default of payment of fine, he has to serve simple imprisonment for a period of six months. Arguments of the petitioner 7. Learned counsel for the petitioner has submitted that the condition precedent for constituting an offence under Section 138 of N.I. Act has not been satisfied in the present case, in as much as, the legal notice regarding bouncing of cheques, which is said to have been sent by the complainant to the petitioner, has not been exhibited before the learned court below and there is no finding regarding date of dispatch and/or service of legal notice and only one receipt regarding registered post has been exhibited as exhibit-2. He has also been submitted that the postal receipt on account of dispatch by itself does not prove the dispatch of legal notice and further no date regarding disp....
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.... dated 25.02.97 amounting to Rs. 75,000/- and dated 25.10.96 amounting to Rs. 30,000/- were presented for collection but the same were returned unpaid with remarks exceeds arrangement. Thereafter the matter was informed by the bank to BSFC who sent a notice to the petitioner in this respect through its lawyer under registered post for payment of cheque amounts within 15 days, but all efforts went in vain and thereafter the complaint case was filed on 03.05.1997. 11. This Court finds that in the complaint, the material particulars in connection with the date, on which, the BSFC received informed about the bouncing of cheques from the bank; the date of which the legal notice was sent and the date on which the legal notice, if any, was served/deemed to have been served, have not been mentioned. Even the legal notice has not been exhibited before the learned court below. However, the complaint case was filed on 3.05.1996, and the learned Trial Court found a prima facie case for offence under Section 138 of N.I. Act and under Section 420 of Indian Penal Code vide order dated 3.04.2000 and the charge was also framed under the same sections on 11.03.2003, which was read over to the pet....
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....e present facts and circumstances of the case. Hence the accused person is found guilty for offence committed by him under Section 138 of N.I. Act, accordingly he is convicted.". 17. So far as the appellate court is concerned, the findings recorded in para 10 and 11, are as follows:- 10. The complainant proved certain documents which have been marked as Exts. viz. Cheque No. 645194 dated 25.10.96 - Ext. 1, cheque No. 645198 dated 25.2.97 Ext. 1/1 and acknowledgment of post office to show service of registered legal notice-Ext. 2. The defence has also produced certain documents which have been marked as Exhibits viz. Letter of Bihar State Financial Corporation Memo No. Zone IV/485/96-97 dated 16/17.10.96 Ext. A, receipt of Bihar State Financial Corporation for Rs. 35,000/- and Rs. 20,000/- dated 7.2.97 and 27.5.97 respectively-Ext. B and B/1. The certificate of bank regarding dishonour of cheques with a remark "exceed arrangement" is an admitted document and defence has not made any objection to the same. 11. The evidence on record as regards the alleged dishonour cheques is consistent, cogent, corroborated and reliable. This is an admitted case of appellant tha....
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.... exhibited the cheques and also proved the postal receipt and successfully proved that the cheques were issued by the petitioner, which had bounced due to insufficient funds. 20. So far as the legal notice is concerned, neither any date of dispatch of the legal notice has been mentioned in the evidence, nor the legal notice has been exhibited, much less, any evidence or finding regarding service of legal notice/deemed service of legal notice is on record. 21. In the judgment passed by the Hon'ble Supreme Court reported in 2014 (10) SCC 713 (Yogendra Pratap Singh Vs. Savitri Pandey and Another), the ingredients of offence under section 138 of N.I. Act has been considered in details and it has been held by the Hon'ble Supreme Court as follows:- "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 fulfillment of the eventualities contained in clauses (a), (b) and (c) of the ....
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.... 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. We have no doubt that all the five essential features of Section 138 of the NI Act, as noted in the judgment of this Court in Kusum Ingots & Alloys Ltd. and which we have approved, must be satisfied for a complaint to be filed under Section 138. If the period prescribed in clause (c) of the proviso to Section 138 has not expired, there is no commission of an offence nor accrual of cause of action for filing of complaint under Section 138 of the NI Act." 22. As per the learned court below has held that for constituting an offence under section 138 of N.I. Act, "the legal requirement is that the cheque must be presented within six months from ....
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.... The learned court below have not even recorded any finding regarding service/deemed service of legal notice much less date of service of legal notice. Mere bouncing of cheque signed by the accused does not constitute an offence unless other ingredients of the offence under section 138 of N.I. Act are also proved. In the aforesaid facts and such circumstances of this case, the basic ingredient to constitute an offence under Section 138 of N.I. Act have not been proved by the prosecution. 26. So far as the judgment relied upon by the counsel for the opposite party No. 2 is concerned, there is no doubt that there is presumption in connection with a cheque in favour of the holder of the cheque under Section 139 of N.I. Act, but that presumption by itself is not sufficient to constitute an offence under Section 138 of N.I. Act, unless the other ingredients have been proved. The presumption with regard to the debt or liability in connection with issuance of cheques is not in dispute from the side of the petitioner but the same is not sufficient to uphold the conviction of the petitioner. The legal presumption has already been duly relied upon by the learned appellate court. The judgm....