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TMI Blog2021 (7) TMI 649X X X X Extracts X X X X X X X X Extracts X X X X ..... ner under Section 138 of the Negotiable Instrument Act and sentenced him to undergo simple imprisonment for six months and he has been further ordered to pay compensation of Rs. 2,00,000/- to the complainant under Section 357(3) Cr. P.C. Argument on behalf of the petitioner 5. Learned counsel for the petitioner submits that the impugned judgements are perverse, in as much as, there is no finding recorded regarding service of notice in connection with bouncing of the cheques upon the petitioner although the same was sent by registered post on 04.03.2008. She also submits that the petitioner in his statement under Section 313 had denied the service of notice. The learned counsel submits that at best the service of notice could have been presumed to have been served only upon expiry of 30 days from its dispatch and thereafter, 15 days' time was required to be given to the petitioner to respond to the demand notice. She submits that the complaint case was filed on 10.04.2008 and as per the timeline, the complaint itself was premature. She submits that in the aforesaid circumstances, the conviction of the petitioner under section 138 of Negotiable Instruments Act, 1881, cannot be s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner regarding bouncing of all cheques but accused did not pay her money back then complainant sent a legal notice through her advocate dated 03.03.2008 which was sent at the address of the petitioner on 04.03.2008 by registered post. In spite of that when the petitioner did not pay the amount of the cheques to the complainant, she filed case under Section 138 of the Negotiable Instruments Act on 10.04.2008. After enquiry a prima facie case under Section 138 of the Negotiable Instruments Act was said to have been made out against the petitioner who was summoned to face trial in this case. After appearance of the petitioner substance of accusation under Section 138 of the Negotiable Instruments Act was explained to which he denied and claimed to be tried. Evidence on behalf of the complainant was adduced. Statement of the petitioner under Section 313 Cr. P.C. was recorded and the petitioner inter alia denied service of legal notice regarding bouncing of cheques. 12. Defence evidence was also produced denying the liability and it was argued that the cheques were issued as security and not in discharge of any debt but this argument of the defence was rejected by both the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10.04.2008 was held to be filed within time line as prescribed under Section 142 of the Negotiable Instruments Act and has complied with all the necessary requirements as required under Negotiable Instruments Act. 16.This court is of the considered view that the learned trial court completely failed to consider that the cause of action for filing a complaint case under Section 138 of the N.I. Act is not counted from the date of dispatch of legal notice, but is counted from expiry of 15 days from the date of service of legal notice. Thus, the timeline for filing the case, even if it is assumed that the legal notice having been sent through registered cover on 04.03.2008 and not return back unserved or returned back for any other reason , the date of service would be 03.04.2008 i.e expiry of 30 days from dispatch of the legal notice and thereafter 15 days was required to be counted i.e., till 18.04.2008 for the cause of action to mature in order to file a complaint case under section 138 of the Negotiable Instruments Act, 1881. However, in the instant case, the complaint was filed on 10.04.2008 and thus, the cause of action for filing the complaint case under Section 138 of the N.I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en on the registered post is correct and therefore held that it shall be presumed that the accused had received the legal notice which has been sent within 30 days of receiving information regarding bouncing of the cheques and thereafter, complaint case had been filed after arising cause of action. 19.Although the learned appellate court applied the concept of deemed service of notice sent under registered cover and not returned back unserved or otherwise but did not indicate the date on which such notice was deemed to have been served and it simply held that the legal notice is deemed to have been served. While calculating the time line in filing the case, the learned appellate court held that the legal notice was sent within 30 days of receiving information regarding bouncing of cheque and held that the complaint was filed after arising of the cause of action. The appellate court neither gave any finding regarding the date of deemed service of notice nor gave any finding that inspite of service of notice the petitioner failed to pay the amount within 15 days from the date of service of legal notice and therefore the complaint case was maintainable. 20.The learned counsel for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis that the same was served within the reasonable period. It was held that if the presumption of notice within the reasonable period is raised, the deemed service at best can be taken to be 30 days from the date of its issuance and the accused was required to make payment in terms of the said notice within 15 days thereafter and the complaint petition therefore could have been filed after expiry of 15 days given to the accused for payment of money after receipt of notice. 22.In the judgment passed by the Hon'ble Supreme Court reported in (2014) 10 SCC 713 (Yogendra Pratap Singh vs. Savitri Pandey and Another) it has been held by the Hon'ble Supreme Court at Paragraphs- 30, 31, 36, 37 to 38 which reads as under: 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 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no offence can be said to have been committed unless and until the period of 15 days, as prescribed under clause (c) of the proviso to Section 138, has, in fact, elapsed. Therefore, a court is barred in law from taking cognizance of such complaint. It is not open to the court to take cognizance of such a complaint merely because on the date of consideration or taking cognizance thereof a period of 15 days from the date on which the notice has been served on the drawer/accused has elapsed. We have no doubt that all the five essential features of Section 138 of the NI Act, as noted in the judgment of this Court in Kusum Ingots & Alloys Ltd. and which we have approved, must be satisfied for a complaint to be filed under Section 138. If the period prescribed in clause (c) of the proviso to Section 138 has not expired, there is no commission of an offence nor accrual of cause of action for filing of complaint under Section 138 of the NI Act. 37. We, therefore, do not approve the view taken by this Court in Narsingh Das Tapadia and so also the judgments of various High Courts following Narsingh Das Tapadia that if the complaint under Section 138 is filed before expiry of 15 days from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 138 of the Negotiable Instruments Act, 1881 had not crystalised on 10.04.2008 and accordingly, the complaint itself was pre- mature and hence not maintainable. 25.Consequently, the condition precedent for filing the case under Section 138 of the Negotiable Instruments Act, 1881, having not been satisfied, the complaint itself was not maintainable on the day it was filed and accordingly, the petitioners could not have been convicted under the said Section. The question of any presumption regarding existing debt under Section 139 of the Negotiable Instruments Act, 1881 also could not arise as the complaint itself was not maintainable. Accordingly, the present petition is hereby allowed. The impugned judgements and sentence passed by the learned courts below are hereby set aside. 26.This court also finds that in the aforesaid judgement reported in (2014) 10 SCC 713, the Hon'ble supreme court while holding that the complaint as pre-mature also observed in Para-41 of the said judgement itself that the remedy for the Complainant was to file a fresh complaint and satisfy the court regarding sufficient cause for delay. 27.The present revision petition is allowed and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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