TaxTMI 
TaxTMI 
2025 (10) TMI 725
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....erseas Bank, Nainital Branch, and on 12.07.2016, submitted an application requesting stoppage of payment in respect of the said cheques. Subsequently, by report dated 15.07.2016, the bank confirmed that stop payment instructions had been carried out and the said cheques had been rendered incapable of encashment. The bank further debited the requisite charges for such stop-payment from the account of the applicant. It was alleged by the applicant that the said cheques, which had been reported lost, were in fact stolen and misused by the respondent no.2 after leaving employment. On the basis of such alleged misuse, the respondent no.2 instituted the complaint, alleging that on account of cordial relations between the parties, the applicant had issued a cheque bearing no. 724484 dated 05.12.2016 for a sum of Rs. 5,00,000/- in his favour. The cheque, when presented, was dishonoured on 15.12.2016 with the endorsement "insufficient funds."On the complaint so filed, the learned Magistrate took cognizance and summoned the applicant to face trial by order dated 13.02.2017. Non-bailable warrants were thereafter issued, and the applicant was arrested on 14.06.2019. He was later released on ba....
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....the complaint itself is premature, as the respondent no.2/complainant has failed to prove the date of service of the statutory notice dated 20.12.2016 upon the applicant. No acknowledgment due card or any other proof of service has been filed. 6. The learned counsel for the applicant also placed reliance on the judgment of the Hon'ble Supreme Court in Yogendra Pratap Singh v. Savitri Pandey, (2014) 10 SCC 713, which categorically holds that a complaint filed prior to expiry of the statutory 15-day period is premature and not maintainable. In the present case, in absence of proof of service, it is clear that no valid cause of action had accrued on the date of filing of the complaint, rendering the proceedings without jurisdiction. It is also submitted by the learned counsel that the complaint has been filed with mala fide intention to harass the applicant. 7. The learned counsel for the applicant by means of his supplementary affidavit has further submitted that the respondent no. 2 has failed to disclose in his complaint the specific date on which the statutory notice dated 20.12.2016 was served upon the applicant. He submits that no acknowledgment due card or any other proof....
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....ought to evade lawful liability. 11. The learned counsel for the respondent no.2 also points out that the demand notice was sent through registered post at the correct address and hence due service upon the applicant must be presumed. The learned counsel also placed reliance on the judgment of Hon'ble Apex Court in Kishore Sharma v. Sachin Dubey (2019), in criminal revision no. 1326 of 2019. This judgment establishes that disputes regarding the service of statutory notice or remarks on the cheque return memo are factual issues which must be adjudicated during the trial. 12. The learned counsel for the respondent no.2 further placed reliance on M/s Ajeet Seeds Ltd. v. K. Gopala Krishnaiah (2014) 12 SCC 685 where the hon'ble Apex Court clarified that even if a complaint does not explicitly aver the service of statutory notice, such technical or procedural omissions do not render the complaint invalid. These matters are also triable issues and cannot justify pre-trial quashing. Therefore, the learned counsel for the respondent no.2 submits that the Magistrate has rightly found a prima facie case under Section 138 NI Act and has issued summons after due consideration. 13. ....
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....the alleged date of issuance i.e. 05.12.2016. The bank's contemporaneous report dated 15.07.2016 confirms that the stop-payment instructions had been acted upon and charges debited. In such circumstances, the subsequent presentation of the cheque in December 2016, resulting in dishonour on the ground of "insufficient funds," cannot be treated as valid dishonour attracting the penal consequences of Section 138 NI Act. The ratio of Raj Kumar Khurana v. State (NCT of Delhi), (2009) 6 SCC 72, squarely applies. Once the cheque had been rendered incapable of encashment before the alleged date of issue, there is in the eye of law no "issuance," and therefore no offence under Section 138 can be said to be made out. 17. This Court also finds merit in the contention that the complaint is premature and not maintainable. The respondent alleged dispatch of statutory notice dated 20.12.2016, but no proof of service such as acknowledgment due card or postal receipt showing actual delivery has been brought on record. Even if the date of dispatch is accepted, the 15-day statutory period for making payment would have expired only after 03.02.2017, and cause of action would have arisen thereafter.....