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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 ..... n which was heard by the learned Addl. Sessions Judge, Jajpur Road in Criminal Appeal No.03 of 2019 and the learned Appellate Court vide impugned judgment and order dated 08.02.2021, allowed the appeal and set aside the judgment and order of conviction passed by the learned trial Court. This leave petition has been filed by the petitioner Prafulla Kumar Prusty @ Prafulla Chandra Prusty challenging the order of acquittal passed by the learned Appellate Court in Criminal Appeal No.03 of 2019 as per the impugned judgment and order dated 08.02.2021. The prosecution case, in short, is that the petitioner and the opposite party belong to same village. The opposite party had borrowed a hand loan of Rs. 4,00,000/- (four lakhs) from the petitioner to purchase a truck with a promise to repay the same within a month. After several demands, the opposite party issued a cheque bearing no.160643 dated 08.01.2013 in favour of the petitioner to discharge his liability. The petitioner presented the said cheque in the Bank for encashment but it returned back with an endorsement "insufficient funds" on 09.01.2013. A demand notice was issued on behalf of the petitioner to the accused on 18.01.2013, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be restored. In this case, there is no dispute that the cheque in question bearing no.160643 dated 08.01.2013 was issued by the opposite party in favour of the petitioner which was presented in the State Bank of India, Panikoili Branch for encashment on the very next day i.e., 09.01.2013 and on the very day, it was also returned back with an endorsement as dishonored on account of "insufficient funds". The demand notice was sent through the Advocate of the petitioner to the opposite party on 18.01.2013. Neither the postal acknowledgement nor the envelop containing the demand notice returned. No response also came from the opposite party relating to such demand notice. The complaint petition was filed on 16.02.2013 before the learned J.M.F.C., Jajpur Road. The crux for consideration before this Court is whether the complaint petition was filed within the prescribed period or it was not a complaint in the legal sense as it was filed prior to the date on which cause of action arose. Section 138 of the N.I. Act reads as follows:- "Section 138 of the N.I. Act 1881: Dishonour of cheque for insufficiency, etc., of funds in the account.-Where any cheque drawn by a person on an acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138. (2) The offence under Section 138 shall be inquired into and tried only by a court within whose local jurisdiction,- (a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or (b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated. Explanation.-For the purposes of clause (a), where a cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account." In this case, since neither the postal acknowledgment nor the envelop containing demand notice returned back to the petitioner, what would be the date of deemed service of the notice on the opposite party? Learned counsel for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is well settled that at the time of taking cognizance of the complaint under Section 138 of the Act, the Court is required to be prima facie satisfied that a case under the said Section is made out and the aforenoted mandatory statutory procedural requirements have been complied with. It is then for the drawer to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the cover was incorrect or that the letter was never tendered or that the report of the postman was incorrect. In our opinion, this interpretation of the provision would effectuate the object and purpose for which proviso to Section 138 was enacted, namely, to avoid unnecessary hardship to an honest drawer of a cheque and to provide him an opportunity to make amends. 15. As noticed above, the entire purpose of requiring a notice is to give an opportunity to the drawer to pay the cheque amount within 15 days of service of notice and thereby free himself from the penal consequences of Section 138. In D. Vinod Shivappa -Vrs.- Nanda Belliappa: (2006) 6 S.C.C. 456, this Court observed: "One can also conceive of ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o avoid receiving the notice by adopting different strategies and escape from legal consequences of section 138 of the Act. 17. In the instant case, the averment made in the complaint in this regard is: Though the complainant issued lawyer's notice intimating the dishonour of cheque and demanded payment on 4.8.2001, the same was returned on 10.8.2001 saying that the accused was out of station. True, there was no averment to the effect that the notice was sent at the correct address of the drawer of the cheque by registered post acknowledgement due. But the returned envelope was annexed to the complaint and it thus, formed a part of the complaint which showed that the notice was sent by registered post acknowledgement due to the correct address and was returned with an endorsement that the addressee was abroad. We are of the view that on facts in hand the requirements of section 138 of the Act had been sufficiently complied with and the decision of the High Court does not call for interference." Learned counsel for the petitioner filed a copy of the complaint petition. In the averments made in the complaint petition, it is simply mentioned that on 18.01.2013, the complainant sent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt of demand notice before filing the complaint petition and the petitioner has failed to prove the same and thus the complaint filed by him is no complaint in the legal sense and as on 16.02.2013 the complainant does not have a cause of action to file the complaint and the cognizance taken by the trial Court is bad in law and therefore, the subsequent trial is vitiated. After carefully going through the impugned judgment of the learned Appellate Court, I find no perversity or illegality in the same. At this stage, the learned counsel for the petitioner relying on the observation made in the case of Yogendra Pratap Singh (supra) contended that the petitioner may be permitted to file a fresh complaint for commission of offence under section 138 of the N.I. Act and to file appropriate application before the concerned Court to condone the delay in filing the complaint which may be considered in accordance with law. Without expressing any opinion, it is observed that in the event, any such fresh complaint with delay condonation application is filed within a period of one month from today, the learned Magistrate shall keep in view the ratio laid down by the Hon'ble Supreme Court and th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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