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TMI Blog2020 (7) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - Cr. Revision No. 202 of 2014 - - - Dated:- 30-6-2020 - Anubha Rawat Choudhary, J. For the Petitioner : Mr. Deepak Kumar, Advocate For the State : Mr. P.K. Appu, Advocate For the O.P. No. 2 None Through Video Conferencing ORDER 1. Heard Mr. Deepak Ku ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emo dated 17.04.2006. The case was filed on 12.05.2006 Exhibit-4 is the notice dated 19.05.2006. Exhibit 5 and 5/1 are postal receipts dated 02.05.2006 and 19.05.2006 respectively. Exhibit 5/2 is the envelope returned dated 27.05.2006. 7. Learned counsel submits that although one postal receipt dated 02.05.2006 has been exhibited as Exhibit-5, but notice dated 02.05.2006 regarding bouncing of cheque has not been exhibited. He further submits that the notice which has been exhibited is notice dated 19.05.2006 and also its postal receipt dated 19.05.2006 which was admittedly issued after filing of the complaint case on 12.05.2006. He submits that notice dated 02.05.2006, if any, regarding bouncing of cheque has not been exhibited before the learned court below and accordingly the basic ingredients for offence under section 138 of Negotiable Instruments Act, 1881 has not been proved. 8. Without prejudice to the aforesaid submissions, the learned counsel for the petitioner has also submitted that even if it is assumed for the sake of argument, that notice regarding cheque bouncing was issued on 02.05.2006, no case under Section 138 of the N.I. Act could have been filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 30. Section 138 of the NI Act comprises of the main provision which defines the ingredients of the offence and the punishment that would follow in the event of such an offence having been committed. Appended to this section is also a proviso which has three clauses viz. (a), (b) and (c). The offence under Section 138 is made effective only on fulfilment of the eventualities contained in clauses (a), (b) and (c) of the proviso. For completion of an offence under Section 138 of the NI Act not only the satisfaction of the ingredients of offence set out in the main part of the provision is necessary but it is also imperative that all the three eventualities mentioned in clauses (a), (b) and (c) of the proviso are satisfied. Mere issuance of a cheque and dishonour thereof would not constitute an offence by itself under Section 138. 31. Section 138 of the NI Act has been analysed by this Court in Kusum Ingots Alloys Ltd. wherein this Court said that the following ingredients are required to be satisfied for making out a case under Section 138 of the NI Act: (SCC p. 753, para 10) (i) a person must have drawn a cheque on an account maintained by him in a bank for p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 15 days from the date of service of notice on the drawer/accused has expired, such complaint was legally maintainable and, hence, the same is overruled. 38. Rather, the view taken by this Court in Sarav Investment Financial Consultancy3 wherein this Court held that service of notice in terms of Section 138 proviso (b) of the NI Act was a part of the cause of action for lodging the complaint and communication to the accused about the fact of dishonouring of the cheque and calling upon to pay the amount within 15 days was imperative in 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 the law and criminal proceedings initiated on s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 05.2006 but that has not been proved as exhibit. 17.Inspite of aforesaid finding, the learned trial court has recorded that the court had perused the registry slip and that exhibit shows that a notice was issued to the accused and this proved that a letter was sent to the accused and accordingly it was self-evident that notice was issued. In the light of this reasoning, the learned trial court held that though legal notice is not proved, but it is proved that a notice was issued in the name of the accused and thereafter within the stipulated time i.e on 12.05.2006, the case was instituted. The learned trial court further rejected the evidence and claim of the accused that there was no existing debt and relied upon presumption under section 139 of the Negotiable Instruments Act, 1881 and held the petitioner guilty of offence under section 138 of the said Act of 1881. 18.This court finds that the learned trial court erred in law in holding that notice regarding bouncing of cheque was issued to the petitioner merely on the basis of the postal receipt dated 02.05.2006 and has further erred in law in holding that thereafter within the stipulated time the case was instituted. Consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this complainant case and had not made payment of the cheque. 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. 21.This court is of the considered view 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. The said view of the learned appellate court is perverse and in direct conflict with the ratio of the aforesaid judgements passed by the Hon'ble supreme court that the complaint under Section 138 of the N.I. Act filed before the expiry of 15 days of service of notice could not be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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