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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 ..... emo of leave may kindly be treated as memo of appeal. 2. the Judgment impugned dated 13.3.2018 passed by the learned court below may kindly be set aside and the respondent be convicted for the offences as charged by allowing the complaint of the complainant as prayed." 3. Learned counsel for the petitioner submits that the matter is covered by the judgment rendered by this Court in Dhanraj Vs. Abhay Singh (S.B. Criminal Leave To Appeal No. 212/2021, decided on 29.03.2022), which reads as under: "1. In wake of instant surge in COVID-19 cases and spread of its highly infectious Omicron variant, abundant caution is being maintained, while hearing the matters in Court, for the safety of all concerned. 2. This criminal leave to appeal has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wever, despite repeated requests, the amount was not re-paid; thereafter, cheque no. 043363 of Rs. 2,58,900/- drawn on Sumerpur Mercantile Urban Cooperative Bank Ltd., Sumerpur Branch was given to the complainant with an assurance that the same will be honoured on being presented. The said cheque on its presentation for encashment, was however, dishonoured by the Bank with the remark, "insufficient funds". 5. Learned counsel for the appellant submits that the criminal proceeding in question has culminated into acquittal of the accused-respondent vide the impugned order passed by the trial court, while deriving strength from the statute law (Act of 1881), which provides that as per clause (c) of Section 138 of the Act of 1881, the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the Court below for a year. It is in the month of August, 2020 that he has approached this Court. 10. Proviso to Section 138 of the Act, 1881 does not constitute ingredients of offence punishable under Section 138. Proviso to Section 138 simply postpones the actual prosecution of the offender till such time he fails to pay the amount, then the statutory period prescribed begins for lodgment of complaint. The Parliament has granted just and proper time to give to the drawer the opportunity to pay the amount before he could be prosecuted. The offence is completed the moment the cheque is dishonoured. Refer to Dashrath Rupsingh Rathod Vs. State of Maharashtra, (2014) 9 SCC 129. 11. The judgment in Shakti Travel and Tours Vs. State of Bih ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to. 15. It is noted that normally in criminal law notice is not mandatory but in the Negotiable Instruments Act a special provision has been made with mandatory impact so that the drawer can avoid criminal proceedings against him by making payment of the legally enforceable debt. The Negotiable Instruments Act is akin to civil law in many aspects but criminal culpability has been carved out only to ensure proper credence to the instrument. 16. The judgment of Hon'ble Apex Court in Alavi Haji, C.C. (supra) clearly stipulates the necessity of Section 138(c). 17. The judgment of Ravi Dixit (supra) rendered by the Hon'ble Allahabad High Court is not applicable in the present case because the fact of that case was that the drawer i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remark "Account Closed". And that, the notice was sent to the accused - respondent by the complainant -appellant, which he refused to accept. Thereafter, the complainant- 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. 5. 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. 6. In view of the above and in light of the aforequoted judgment, the present cri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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