2021 (11) TMI 163 - HC - Indian Laws

Dishonor of cheques - service of legal notice - legally enforceable debt or not - rebuttal of presumption or not - Section 139 of the Negotiable Instruments Act - HELD THAT - It appears that none of the witnesses has stated as to what happened to the legal notice and as to whether the same was served or not. A defence witness was also produced from the side of the accused indicating that he had intimated in the police station regarding loss of cheques and the defence evidence was also considered by the learned trial court indicating that the information to police (Exhibit-A with objection) did not even state the number of cheques and their numbers which were lost and accordingly, the defence evidence was rejected by the learned trial court. The learned trial court, while convicting the petitioner, held that once a cheque is signed and issued, there is presumption that the same was issued against a debt or liability. However, the learned trial court did not record any specific finding with regard to compliance of the other 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. This Court is of the considered view that the complaint filed by the complainant was premature as the cause of action for filing the complaint case under Section 138 of Negotiable Instruments Act was not crystalized on the date of filing of the complaint on 11.02.2003 and accordingly, the condition precedent for filing the complaint case under Section 138 of Negotiable Instruments Act, 1881 having not been satisfied, the conviction and sentence of the petitioner cannot be sustained in the eyes of law. The present criminal revision petition is allowed.

Summary

Issues Involved:
1. Legality of the complaint filed under Section 138 of the Negotiable Instruments Act.
2. Compliance with the preconditions for filing a complaint under Section 138.
3. Service of legal notice and the timeline for filing the complaint.

Detailed Analysis:

1. Legality of the Complaint Filed Under Section 138 of the Negotiable Instruments Act:
The petitioner challenged the judgment dated 22.11.2010, which affirmed the conviction and sentence under Section 138 of the Negotiable Instruments Act. The petitioner was sentenced to six months of rigorous imprisonment and a fine of ?2 lakhs, with an additional three months of simple imprisonment in case of default in payment of the fine.

2. Compliance with the Preconditions for Filing a Complaint Under Section 138:
The petitioner argued that the condition precedent for filing the complaint was not satisfied. The legal notice was sent on 16.01.2003, and the complaint was filed on 11.02.2003. The petitioner contended that the complaint was premature as the 30-day period from the date of the notice would expire around 15.02.2003, and an additional 15 days were required for the accused to make the payment. The courts below did not record any specific findings regarding the compliance with these preconditions.

3. Service of Legal Notice and the Timeline for Filing the Complaint:
The court found that there was no evidence or averment regarding the service of the legal notice. The prosecution did not provide any witness testimony about what happened to the legal notice or whether it was served. The appellate court noted that Section 138 of the Negotiable Instruments Act has three ingredients: a legally enforceable debt, the cheque drawn from the bank account for discharge of debt, and the cheque returned due to insufficient funds. The court emphasized that the legal notice must be served, and the accused must be given 15 days to pay the cheque amount after the notice is deemed served.

The court referred to the Supreme Court judgments in "Subodh S. Salaskar vs. Jayprakash M. Sah and Another" and "Yogendra Pratap Singh vs. Savitri Pandey and Another," which clarified that the cause of action for filing a complaint under Section 138 arises only after the expiry of 15 days from the date of service of the notice. The court concluded that the complaint was filed prematurely as the cause of action had not crystallized by the date of filing.

Conclusion:
The High Court set aside the judgments of conviction and sentence dated 03.04.2008 and 22.11.2010, respectively, as the complaint was filed prematurely. The court allowed the criminal revision petition and discharged the bailors of their liabilities. The court also noted that the complainant could file a fresh complaint and satisfy the court regarding sufficient cause for delay. The lower court records were ordered to be sent back, and a copy of the order was to be communicated to the concerned court.