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TMI Blog2022 (3) TMI 1049X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of YOGENDRA PRATAP SINGH VERSUS SAVITRI PANDEY ANR. [ 2014 (9) TMI 1129 - SUPREME COURT] , such a complaint is no complaint in the eyes of law and no cognizance of offence can be taken up on the basis of such complaint. There are no perversity or illegality in the same - there are no reasons to grant leave to the petitioner to prefer an appeal against the order of acquittal passed by the learned Appellate Court as per impugned judgment - petition dismissed. - CRLLP No.12 of 2021 - - - Dated:- 11-2-2022 - Honourable Mr. Justice S.K. Sahoo For the Petitioner : Mr. Trilochan Dash For the Opp. Party : None ORDER S. K. SAHOO, J. The petitioner Prafulla Kumar Prusty @ Prafulla Chandra Prusty is the complainant in a case under section 138 of the Negotiable Instruments Act, 1881 (hereinafter N.I. Act ). The complaint petition was filed before the learned J.M.F.C., Jajpur Road vide I.C.C. No.331 of 2013 against the opposite party Ramesh Chandra Behera who faced trial in the said Court and was found guilty under section 138 of the N.I. Act and sentenced to undergo simple imprisonment for a period of six months and was also directed to pay a sum o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court after discussing the oral as well as the documentary evidence came to hold that the petitioner as the complainant has successfully established his case beyond all reasonable doubt and accordingly, found the opposite party guilty for commission of offence under section 138 of the N.I. Act. The opposite party preferred Criminal Appeal challenging the judgment of the learned trial Court and the learned Appellate court has been pleased to hold that the petitioner was required to prove that the opposite party got a clear fifteen days of time from the date of receipt of demand notice before filing the complaint and since the petitioner has failed to prove such aspect, the complaint filed by the petitioner is not a complaint in legal sense and he does not have a cause of action to file such a complaint and the cognizance taken by the learned trial Court is bad in law and the subsequent trial is also vitiated. The learned Appellate Court relied upon the ratio laid down by the Hon ble Supreme Court in the case of Yogendra Pratap Singh -Vrs.- Savitri Pandey reported in (2014) 59 Orissa Criminal Reports (SC) 577. Mr. Trilochan Das, learned counsel appearing for the petitioner cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice. Explanation. For the purposes of this section, debt or other liability means a legally enforceable debt or other liability. Section 142 of the N.I. Act reads as follows:- Section 142 of the N.I. Act 1881: Cognizance of offences.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) such com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement refused or not available in the house or house locked or shop closed or addressee not in station, due service has to be presumed. (Vide: Jagdish Singh -Vrs.- Natthu Singh: A.I.R. 1992 S.C. 1604, State of M.P. -Vrs-. Hiralal Ors: (1996) 7 SCC 523 and V.Raja Kumari -Vrs- P. Subbarama Naidu Anr. (2004) 8 SCC 774). It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved. 14. Insofar as the question of disclosure of necessary particulars with regard to the issue of notice in terms of proviso (b) of Section 138 of the Act, in order to enable the Court to draw presumption or inference either under Section 27 of the G.C. Act or Section 114 of the Evidence Act, is concerned, there is no material difference between the two provisions. In our opinion, therefore, when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make necessary arrangements for the payment of the cheque. The proviso is not meant to protect unscrupulous drawers who never intended to honour the cheques issued by them, it being a part of their modus operandi to cheat unsuspecting persons. 16. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under section 138, by ignoring statutory presumption to the contrary under section 27 of the G.C. Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice. It was further held as follows: 23. The complaint petition admittedly was filed on 20.4.2001. The notice having been sent on 17.1.2001, if the presumption of service of notice within a reasonable time is raised, it should be deemed to have been served at best within a period of thirty days from the date of issuance thereof i.e. 16.2.2001. The accused was required to make payment in terms of the said notice within fifteen days thereafter i.e. on or about 2.3.2001. The complaint petition, therefore, should have been filed by 2.4.2001. Keeping in view the ratio laid down in the case of Subodh S. Salaskar (supra), when a demand notice was sent through the Advocate of the petitioner on 18.01.2013 and neither the acknowledgment nor the envelope containing demand notice returned back, then the due service date would be thirty days from the date of issuance of legal notice which falls on 17.02.2013 and as per the clause-(c) of 138 of the N.I. Act, the opposite party was required to make payment in terms of the said notice within fifteen days thereafter i.e. on 04.03.2013. Since the complaint petition was filed on 16.02.2013 and cognizance of offence was taken on such compl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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