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TMI Blog2021 (11) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - Cr. Rev. No. 1137 of 2010 - - - Dated:- 25-10-2021 - HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Petitioner : Mr. A.K. Sahani, Advocate For the State : Mr. P.D. Agrawal, A.P.P. For the O.P. No.2 : Mr. Rohit Ranjan Sinha, Advocate Heard Mr. A.K. Sahani, the learned counsel appearing on behalf of the petitioner. 2. Heard Mr. P.D. Agrawal, the learned A.P.P. appearing on behalf of the Opposite Party-State. 3. Heard Mr. Rohit Ranjan Sinha, the learned counsel appearing on behalf of Opposit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, during the course of argument, it has not been disputed that the legal notice was sent on 16.01.2003 and the complaint case was filed on 11.02.2003. Admittedly, there is no evidence or averment with regard to service of legal notice and/or as to what happened to the legal notice. 8. After hearing the learned counsel for the parties, this Court finds that altogether three witnesses were examined from the side of the prosecution. Exhibit-1 is the cheque dated 09.09.2002, Exhibit- 2 and 3 are the cheque return memos dated 26.09.2002 and 04.01.2003 respectively and the case was filed pursuant to bouncing of cheque on 04.01.2003. Exhibit- 4 is the postal receipt dated 16.01.2003 with regard to the demand notice dated 16.01.2003 marked as Exhibit- 5. It is not in dispute that the cheque had bounced on account of insufficient fund. 9. Upon perusal of the impugned judgements, 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 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the offence under Section 138 of Negotiable Instruments Act i.e. the service of notice upon the accused and thereafter, 15 days time to the accused to pay the cheque amount. The learned appellate court has recorded that the legal notice was sent through Exhibit-5 and in spite of receiving a notice, the accused did not make the payment and the accused has failed to contradict the prosecution witnesses in cross-examination. 13. In the judgment passed by the Hon ble Supreme Court reported in (2008) 13 SCC 689 (Subodh S. Salaskar vs. Jayprakash M. Sah and Another), the notice was sent through speed post and although the actual date of service of notice was not known, the Complainant proceeded 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said notice. 36. A complaint filed before the expiry of 15 days from the date on which notice has been served on drawer/accused cannot be said to disclose the cause of action in terms of clause (c) of the proviso to Section 138 and upon such complaint which does not disclose the cause of action the court is not competent to take cognizance. A conjoint reading of Section 138, which defines as to when and under what circumstances an offence can be said to have been committed, with Section 142(b) of the NI Act, that reiterates the position of the point of time when the cause of action has arisen, leaves no manner of doubt that 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 Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t at the correct address, the deemed service of notice can be taken only upon expiry of 30 days from its dispatch. 16. The learned courts below have not recorded any finding with regard to the date of service of notice or presumption, if any, regarding service of notice so as to calculate the timeline with regard to filing of the Complaint under Section 138 of the Negotiable Instruments Act. Admittedly, there is no evidence on record regarding service of notice upon the petitioner. Even if the best case of the complainant is taken into consideration that the notice sent under registered cover is to be taken as deemed to have been served upon the accused only upon expiry of 30 days from the date of its issuance and thereafter, 15 days is to be counted for the purpose of granting opportunity to the accused to pay the cheque amount and upon expiry of the period of fifteen days from deemed service of notice, cause of action to file a case under Section 138 of Negotiable Instruments Act can arise. In the instant case, legal notice having been issued on 16.01.2003, the deemed service at best could have been taken on or about 15.02.2003 and the case was filed on 11.02.2003. 17. Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X
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