9911796707
TMI Blog2022 (4) TMI 470X X X X Extracts X X X X X X X X Extracts X X X X ..... fy the legally enforceable debt in case he desires to. 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. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst 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 Mandi and Shri Dhanraj is the power of attorney holder of said Firm. The accused-respondent, who is a farmer, used to sell his agricultural produce to the complainant-Firm, and thus, there were business transactions b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel 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 to discharge such lawful liability, then he has to suffer the proceedings under Section 138 of the Act of 1881. 8. Learned counsel for the appellant draws the attention of this Court towards the judgment rendered by Hon ble Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 make payment, the complainant cannot file a complaint. Proviso (c) of the said Act is to see the bona fide of the drawer of the cheque and is with a view to grant him a chance to make the payment. 9. In this case, the cheque was drawn by the accu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 fifteen days as prescribed under Section 138(c) of Act of 1881 is a window available to the drawer of Negotiable Instrument to enable him to satisfy the legally enforceable debt and to avoid criminal proceedings. 14. The Legislature was conscious when 15 days ti ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
