TaxTMI 
TaxTMI 
TaxTMI 
2021 (11) TMI 726
X X X X Extracts X X X X
X X X X Extracts X X X X
....lamau at Daltonganj in connection with Complaint Case No. C-1263 of 2009 corresponding to T.R. No. 62 of 2010 has been dismissed. The petitioner has been convicted for offence under Section 138 of Negotiable Instruments Act, 1881 and has been sentenced to undergo Simple Imprisonment for three months and to pay fine of Rs. 4,00,000/- and in default, to undergo further Simple Imprisonment for three months. It was also directed that the Complainant shall be compensated under Section 257 Cr.P.C to the tune of Rs. 3.5 lakhs due to loss incurred by him. Arguments by the learned Amicus on behalf of the petitioner 5. While advancing the arguments, learned Amicus Curiae submitted that the present case can be disposed of on a short point that the Complaint petition itself was premature as the statutory period prescribed under the provisions of Section 138 of the Negotiable Instruments Act, 1881 was not duly satisfied. Learned Amicus Curiae also submitted that this is without prejudice to the contention of the petitioner that the cheque itself was not issued against any debt or liability. 6. The learned counsel submitted that the material dates would be the date of issuance of cheque of Rs....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he Complainant. It was alleged that the Complainant deposited the said cheque in his account for encashment on 10.11.2009, which got dishonoured due to insufficient fund. Thereafter, the Complainant sent a legal notice to the petitioner through registered post on 19.11.2009 and demanded the cheque amount from the petitioner to which he did not respond and did not refund the cheque amount to the Complainant. Therefore, the Complainant instituted a Complaint on 22.12.2009. 10. Upon enquiry under Section 202 Cr.P.C., a Prima facie case under Section 138 of Negotiable Instruments Act was found to be made out against the petitioner. The substance of accusation was explained to the petitioner on 22.03.2010 for the offence under Section 138 of Negotiable Instruments Act to which the petitioner pleaded not guilty and claimed to be tried. 11. The Complainant examined himself as C.W.-5. He has deposed that on 24.10.2009, the accused had given him a cheque of Rs. 3.5 lakhs. He has further deposed that there was a partnership work between him and the petitioner and for that purpose, he had given him a debt of Rs. 3 lakhs. On final settlement done between them on 24.10.2009, a profit of Rs. 6....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... However, the learned trial court did not consider the date on which the notice will be taken as deemed to have been served upon the petitioner and as to whether the required time lines were followed for the purposes of filing the Complaint under Section 138 of the Negotiable Instrument Act, 1881. The learned appellate court also did not consider the aforesaid aspect of the matter and confirmed the trial court judgment. 14. In the light of the submissions advanced, the only question which is required to be answered in the present case is as to whether on the date of filing of the complaint case under Section 138 of the Negotiable Instruments Act, 1881, the cause of action had crystalized or the complainant itself was pre-mature? 15. The material dates are: - 24.10.2009-date of issuance of cheque of Rs. 3.5 lakhs; 10.11.2009 -the cheque bounced on account of "insufficient funds" 19.11.2009-the legal notice was dispatched through registered cover. 22.12.2009-Complaint case was filed. 16. This Court finds that admittedly, there is no evidence of service of the legal notice to the petitioner and accordingly, the learned courts below has considered deemed service of notice b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eque 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 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." 36. A complaint filed before the expiry of 15 days from the date on which notice has been served o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n 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. 19. This Court finds that the law has been well settled by the aforesaid judgement that the cause of action for filing a Complaint case under Section 138 of the N.I. Act could not arise prior to expiry of 15 days from the date of service of the legal notice on the accused. 20. This Court also finds that even if the best case of the Complainant is taken into consideration, then the date of dispatch of the legal notice regarding bouncing of the cheque by the complainant is 19.11.2009 (through registered cov....