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TMI Blog2022 (4) TMI 419X X X X Extracts X X X X X X X X Extracts X X X X ..... ant-appellant filed a complaint on the 13th day i.e. 25.04.2012, after serving the notice from the date of refusal of acceptance of said notice, by the accused-respondent, which was presented prematurely instead of after the completion of prescribed statutory period of 15 days, which would be after 27.04.2012. This Court, therefore, finds that the complainant-appellant registered the complaint before the statutory period of 15 days, as prescribed under Section 138 (c) of the Act of 1881. The present criminal leave to appeal is dismissed. - S.B. Criminal Leave to Appeal No. 331/2019 - - - Dated:- 30-3-2022 - Dr. Pushpendra Singh Bhati, J. For the Appellant : Surya Prakash Sharma For the Respondents : N.S. Bhati, PP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de and the accused respondent may kindly be adequately punished for the criminal delinquency which he committed under the provision of N.I. Act, and or the matter be remanded to the trial court to proceed against the accused respondent and pass appropriate judgment according to law. 3. The factual matrix of case in brief is that the appellant/ complainant filed a complaint under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'Act of 1881') against respondent-accused on 22.02.2010 before the Court of Judicial Magistrate, Sumerpur, District Pali alleging inter-alia that the complainant (Firm-M/s. Trilokchand Praveen Kumar) does its business of general merchant and commission agent at New Krishi Upaj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atisfied in the present case, as the complaint in question has been preferred on 12th day i.e. before expiry of the mandatory period of 15 days from the date of service of notice upon the drawer/accused. 6. Learned counsel for the appellant further submits that 15 days' period prescribed under Section 138 of the Act of 1881 is not mandatory. Learned counsel also submits that Section 138 of the Act of 1881 cannot be construed to defeat the legislative intent behind enacting the Act of 1881, rather the intention of drawer has to be seen. 7. Learned counsel for the appellant further submits that the drawer had sufficient opportunity to satisfy the legally enforceable debt, even before filing of the complaints; but once he failed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. As observed in Bhaskarans case (supra), if the giving of notice in the context of Clause (b) of the proviso was the same as the receipt of notice a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act. 9. Learned counsel for the appellant further draws the attention of this Court towards the judgment rendered by the Hon'ble Allahabad High Court in Ravi Dixit Vs. State of U.P. and Anr. (Application U/s. 482 No. 14068 of 2020, decided on 23.09.2020). Relevant portion of which reads as follows:- 8. The provision of Section 138 of the Act, 1881 cannot be interpreted to mean that even if the accused refuses to m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which goes to show that the intention of the drawer is clear that he did not wish to make the payment. Once this is clarified, should the complainant wait for the minimum period of 15 days, the answer would be 'no'. 10. Learned counsel for the appellant thereafter harped upon the issue that notice under Section 138 of Act of 1881 was sent on 05.02.2010, but the same was refused to be taken on 10.02.2010. 11. Heard learned counsel for the appellant as well as perused the record of the case, alongwith the judgments cited at the Bar. 12. For the order proposed to be passed, it is not considered necessary to issue any formal notice to the respondent. 13. This Court is of the considered opinion that the period of fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting 15 days window stood satisfied. 18. In the present case, the fact admitted are that the notice was served on 10.02.2010 and the proceedings were launched on 22.02.2010, which is 12th day of sending notice, instead of after completion of 15 days that would have happened on 25.02.2010 and, thus, the opportunity envisaged by the Legislature for the drawer on the completion of 15 days was cut short paving way for derailment of the 138 proceedings. 19. The impugned order has taken note of the fact that the proceedings were initiated on 12th day i.e. 22.02.2010 from the service of notice and before the expiry of the mandatory period as provided under section 138(c) and, thus, has rightly held that no cause of action accrued to appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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