2020 (7) TMI 165 - HC - Indian Laws

Dishonor of Cheque - allegation that the condition precedent for filing of the case under Section 138 of the Negotiable Instruments Act, 1881 was itself not satisfied - HELD THAT - The learned appellate court erred in law in ignoring the mandatory time frame prescribed under section 138 of aforesaid Act of 1881 and held that the complaint case filed after 10 days of issuance of notice of bouncing of cheque was not fatal to the case on the ground that the purpose for issuance of notice has been fulfilled as the accused Anil Chandra had got knowledge about the dishonour of the cheque much before the filing of the complainant case and had not made payment of the cheque and that the accused had the opportunity to make payment in Court within fifteen days of receiving of Court's notice, if he was honest towards his cheque. This court finds that in the present case the notice regarding bouncing of cheque prior to filing of the case has not been exhibited and what has been exhibited is only a postal slip dated 02.05.2006 and the complaint case was filed on 12.05.2006 i.e. prior to expiry of 15 days from the alleged date of dispatch of notice regarding cheque bouncing - neither the notice dated 02.05.2006 has been exhibited nor the case has been filed after expiry of the stipulated time frame as per the said Act of 1881. Rather one legal notice dated 19.05.2006 and its postal receipt issued after filing of the complaint case has been exhibited. The aforesaid aspect of the matter has not been properly considered by the learned courts below and both the courts have erred in holding the petitioner guilty of offence under section 138 of the aforesaid Act of 1881 by resorting to the presumptions under section 139 of the Act of 1881 although the complaint itself was not maintainable on the day it was filed. The complaint was not maintainable on the day it was filed, the impugned judgements of conviction and sentence are set-aside - Petition allowed.

Summary

Issues Involved:
1. Whether the condition precedent for filing a case under Section 138 of the Negotiable Instruments Act, 1881 was satisfied.
2. Whether the complaint filed before the expiry of the 15-day notice period is maintainable.
3. Whether the judgments of the lower courts were perverse and contrary to the judicial pronouncements by the Hon'ble Supreme Court.

Detailed Analysis:

Issue 1: Condition Precedent for Filing a Case under Section 138 of the Negotiable Instruments Act
The petitioner argued that the condition precedent for filing the case under Section 138 of the Negotiable Instruments Act, 1881 was not satisfied. The counsel for the petitioner highlighted various dates and exhibits, noting that the notice regarding the cheque bouncing was issued on 02.05.2006, but the case was filed on 12.05.2006, before the expiry of the 15-day period required under the Act. The petitioner contended that the notice dated 02.05.2006 was not exhibited, and the notice dated 19.05.2006 was issued after the filing of the complaint. The counsel for the State did not dispute the requirement of following the timeline provided in Section 138 of the Act.

Issue 2: Maintainability of Complaint Filed Before Expiry of 15-Day Notice Period
The court referred to the Supreme Court judgment in Yogendra Pratap Singh v. Savitri Pandey, which clarified that a complaint filed before the expiry of the 15-day notice period could not be treated as a valid complaint. The court emphasized that for an offence under Section 138 to be constituted, all the conditions in clauses (a), (b), and (c) of the proviso must be satisfied, including the 15-day period for the drawer to make the payment after receiving the notice. The Supreme Court in Kamlesh Kumar v. State of Bihar reiterated that the complaint must be filed after the expiry of the 15-day notice period.

Issue 3: Perversity of Lower Court Judgments
The trial court found that the case was instituted on 12.05.2006, and the legal notice proved as Exhibit 4 was sent after the filing of the case. Despite this, the trial court concluded that a notice was issued based on a postal receipt dated 02.05.2006. The appellate court upheld the conviction, stating that the accused had knowledge of the dishonour of the cheque and had not made the payment. However, the High Court found that both lower courts erred in law by ignoring the mandatory 15-day notice period and relying on the presumption under Section 139 of the Act. The High Court held that the complaint was not maintainable as it was filed within 10 days from the alleged date of dispatch of the notice, making the judgments of conviction and sentence perverse and contrary to the Supreme Court's rulings.

Conclusion:
The High Court set aside the impugned judgments of conviction and sentence, finding them perverse and contrary to the judicial pronouncements by the Hon'ble Supreme Court. The petition was allowed, and the records were directed to be sent back to the concerned court.