TaxTMI 
TaxTMI 
TaxTMI 
2021 (11) TMI 163
X X X X Extracts X X X X
X X X X Extracts X X X X
....nstruments Act and has been sentenced to undergo Rigorous Imprisonment for a term of six months and to pay a fine of Rs. 2 lakhs and in case of default of payment of fine, the petitioner has been directed to further undergo Simple Imprisonment for three months. 5. The learned counsel for the petitioner submitted that the impugned judgement of conviction of the petitioner is ex-facie perverse in view of the fact that the condition precedent for filing the complaint case was itself not satisfied. The learned counsel submitted that in the present case, the legal notice was sent on 16.01.2003 through registered post and the complaint case was filed on 11.02.2003. He referred to the complaint petition as well as the impugned judgement to submit that there is no averment regarding the fact as to what happened to the legal notice and even if the legal notice is assumed to be served upon the accused, then also 30 days from 16.01.2003 would expire only on or about 15.02.2003 and thereafter, 15 days was required to be given to the accused to pay the cheque amount, but in the instant case the complaint was filed on 11.02.2003 and accordingly, the complaint itself was premature. 6. The learn....
X X X X Extracts X X X X
X X X X Extracts X X X X
....preconditions to constitute an offence under Section 138 of Negotiable Instruments Act for the purposes of even filing a criminal case under the said section. 10. The appellate court recorded that Section 138 of the Negotiable Instruments Act has three ingredients: (i) There should be a legally enforceable debt, (ii) That the cheque was drawn from the account of the bank for discharge in whole or in part of any debt or other liability which pre-supposes a legally enforceable debt, and (iii) That the cheque so issued has been returned due to insufficiency of fund. The learned appellate court referred to Section 139 of the Negotiable Instruments Act regarding presumption in favour of the holder of the cheque. 11. The learned appellate court ultimately recorded its findings at Para-10 which read as follows: "10. In the light of the aforesaid, it has to be seen whether the case comes under the purview of all the ingredients. On the basis of the oral and documentary evidence adduced by the complainant, it is clear that the ingredients of Section 138 of N.I. Act are present. It is not in dispute that the cheque in question was issued by the accused in favour of M/s Raju Const....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he 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 Court said that the following ingredients are required to be satisfied for making out a case under Section 138 of the NI Act: (SCC p. 753, para 10) "(i) a person must have drawn a cheque on an account maintained by him in a 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 insuf....
X X X X Extracts X X X X
X X X X Extracts X X X X
....before expiry of 15 days from the date on which notice has been served on the drawer/accused, the same is premature and if on the date of taking cognizance, a period of 15 days from the date of service of notice on the drawer/accused has expired, such complaint was legally maintainable and, hence, the 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 th....