2021 (1) TMI 661 - HC - Indian Laws

Dishonor of Cheque - service of notice - Refusal of notice - endorsement of refusal by the postal peon was dated 10.04.07 while notice refused on 2.4.07 - case of petitioner is is that the Complaint itself was premature and not maintainable, inasmuch as, the statutory period for filing the Complaint under Section 138 of the Negotiable Instruments Act, 1881 had not expired - HELD THAT - This court finds that there is nothing on record, neither documentary or oral evidence, as to what happened on 02.04.2007 when the postal peon went to deliver the notice and as to whether he met the accused and whether on the same day the accused refused to accept the notice. Admittedly, the postal peon has not been examined as a witness and the postal envelope has a specific endorsement of refusal with a date as 10.04.2007. Thus, finding of the learned lower appellate court that the date of refusal is to be taken as 02.04.2007 is based on no evidence and perverse and is accordingly set-aside. The finding of the learned trial court that the date of service of notice is the date of endorsement of refusal 10.04.2007 is well reasoned order on the point of date of refusal of notice. Accordingly, the finding of the learned lower appellate court that the date of refusal of the notice was 2.4.07 is perverse and is set-aside and it is held that the date of refusal of the notice by the accused is 10.04.2007 and not 02.04.2007. If the date of refusal of notice is held to be 10.04.2007 and not 02.04.2007 then, Whether the Complaint filed on 17.04.2007 was premature due non-fulfillment of condition prescribed under Clause (c) of the proviso to Section 138 of the Negotiable Instruments Act, 1881 and therefore, the Complaint was not legally maintainable? - HELD THAT - This Court is of the considered view that in the case of refusal to receive the demand notice also, the cause of action to file the Complaint would not arise unless the statutory period of 15 days from the date of refusal to receive the demand notice has expired - This Court finds that the learned trial court has held the Complaint maintainable on the basis that after refusal to receive the legal notice on 10.04.2007, the Complaint was filed on 17.04.2007, but summon was issued against the petitioner on 12.09.2007 which is much after the lapse of 15 days. This Court is of the considered view that learned courts below have erred in holding that the Complaint was maintainable. Accordingly, this Court holds that the Complaint filed before expiry of the statutory period 15 days from the date of refusal to receive the legal/demand notice regarding the dishonour of the cheques was premature in view of the fact that the cause of action for filing the Complaint had not arisen on 17.04.2007 and therefore, the Complaint itself was not legally maintainable. The petitioner is acquitted from the accusation thereunder and he is discharged from the liability of his bail bond - Revision petition allowed.

Summary

Issues Involved:
1. Whether the Complaint was premature and not legally maintainable due to non-fulfillment of the statutory period under Section 138 of the Negotiable Instruments Act, 1881.
2. Whether the findings of the lower appellate court regarding the date of refusal of the notice were perverse.

Issue-wise Detailed Analysis:

Issue 1: Premature Complaint and Legal Maintainability

The petitioner argued that the Complaint was filed prematurely, i.e., before the expiry of the statutory period of 15 days from the date of refusal of the demand notice, as required under Section 138 of the Negotiable Instruments Act, 1881. The legal notice was sent on 26.03.2007 and returned with a refusal endorsement dated 10.04.2007. The Complaint was filed on 17.04.2007, which was before the expiry of the 15-day period from the date of refusal.

The Hon'ble Supreme Court in Yogendra Pratap Singh vs. Savitri Pandey and Another (2014) 10 SCC 713 clarified that a Complaint filed before the expiry of the 15-day period from the date of receipt of the notice is not legally maintainable. The Court emphasized that the cause of action for filing a Complaint under Section 138 arises only after the expiry of the 15-day period provided for the drawer to make the payment.

The trial court's view that the Complaint was maintainable because the summon was issued after the lapse of 15 days was found to be in conflict with the Supreme Court's ruling. The appellate court's presumption about the date of refusal was also incorrect as it was not based on any evidence.

Issue 2: Perverse Findings on Date of Refusal

The appellate court presumed that the refusal occurred on 02.04.2007 based on multiple delivery attempts by the postal man. However, the refusal endorsement on the postal envelope was dated 10.04.2007. The postal peon was not examined as a witness to confirm the events of 02.04.2007, 03.04.2007, and 09.04.2007. Therefore, the finding that the refusal date was 02.04.2007 was declared perverse and not supported by evidence.

Findings of the Court:

1. The Court held that the date of refusal of the notice was 10.04.2007, not 02.04.2007, as there was no evidence to support the appellate court's finding.
2. The Complaint filed on 17.04.2007 was premature as it was filed before the expiry of the statutory 15-day period from the date of refusal (10.04.2007). Thus, the Complaint was not legally maintainable.
3. Both the trial court and the appellate court erred in their judgments. The trial court's reasoning was in conflict with the Supreme Court's ruling, and the appellate court's presumption was unsupported by evidence.

Conclusion:

The Court set aside both the impugned judgments of the lower courts and acquitted the petitioner. The petitioner was discharged from the liability of his bail bond. The Complainant was given the liberty to file a fresh Complaint in accordance with the law, as per the observations made by the Hon'ble Supreme Court in Yogendra Pratap Singh's case.

Order:

The criminal revision petition was allowed, and the lower court records were ordered to be sent back. The order was communicated to the lower court via FAX. Pending interlocutory applications were dismissed as not pressed.