9911796707
TMI Blog2021 (7) TMI 649X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. Act had not matured on 10.04.2008, which is the date of filing the complaint case. This Court also finds that the learned trial court has not recorded any finding in connection with the service of legal notice much less of finding of deemed service of notice after expiry of the 30 days period from dispatch of legal notice under registered cover. This Court finds that there is no material on record regarding service of legal notice dated 03.03.2008 dispatched by registry on 04.03.2008 upon the petitioner and it is not the case of the complainant that the legal notice was returned unserved or returned for any other reason. This court is also of the considered view that presumption regarding service of notice sent through registered cover can be drawn only upon expiry of 30 days from the date of dispatch of notice - This Court finds that the law has been well settled that the cause of action for filing a complaint case under Section 138 of the N.I A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 sustained and calls for interference in revisional jurisdiction. Argument on behalf of the Opposite Parties 6. Learned counsel appearing on behalf of the opposite party no. 2, while opposing the prayer, has submitted that there is no illegality or perversity in the impugned judgements and there is a little scope for interference in revisional jurisdiction. 7. The learned counsel for the opposite party no. 2, relied upon the order passed by the Hon'ble Supreme Court reported in (2007) 14 SCC 750 (C. C. Alavi Haji Vs. Palapetty Muhammed and Another) on the point of service of notice. 8. Learned counsel appearing on behalf of the opposite party-State has also supported the arguments advanced on behalf of the opposite party no. 2. Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 learned courts below inter alia by referring to the legal presumption regarding drawing of cheque. 13. The only question which is required to be answered in the present case is as to whether on the date of filing of the complaint case under section 138 of the Negotiable Instruments Act, 1881, the cause of action had crystalized or the complainant itself was pre-mature? 14.The learned trial court found that the prosecution had proved the four cheques of the accused as Exhibits-1, 1/1, 1/2 and 1/3 and also proved the cheque return memo of the four cheques dated 08.02.2008 as Exhibit-2. The prosecution also proved a legal notice regarding bouncing of cheque dated 03.03.2008 (i.e. Exhibit-3). The prosecution also prove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urned 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. Act had not matured on 10.04.2008, which is the date of filing the complaint case. This Court also finds that the learned trial court has not recorded any finding in connection with the service of legal notice much less of finding of deemed service of notice after expiry of the 30 days period from dispatch of legal notice under registered cover. 17.The learned appellate court has recorded its finding in connection with cause of action of filing the case under Section 138 of the N.I. Act at paragraph-8, which is quoted hereinbelow for ready reference: - At the very outset, I would like to mention here that the signature on the cheque of the accused is an admitted fact. The facts admitted need not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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 the opposite party No.-2 has relied upon an order dated 14.02.2007 passed by the Hon'ble Supreme Court reported in (2007) 14 SCC 750. Upon perusal of the said order, this Court finds that the same is a reference for consideration of question involved in the said case to a Larger Bench. The reference was ultimately answered in the judgement dated 18.05.2007 reported in (2007) 6 SCC 555. In the said case, the notice could not be served upon the accused as it was returned unserved with an endorsement of the postal peon out of station and the complainant did not allege that the service of notice was deliberately avoided by the accused or the postal endorsement of the postal peon on the envel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 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 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 ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, 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 the date on which notice has been served on the drawer/accused, the same is premature and if on the date of taking cognizance, a period 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 Consultancy 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
