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TMI Blog2024 (7) TMI 858X X X X Extracts X X X X X X X X Extracts X X X X ..... the instant case, the complaint has been filed by the power of attorney holder in his own name and not as the power of attorney holder of the payee of the cheque and further no offence under Section 138 of N.I. Act, 1881, is constituted in view of the failure of the applicant to make assertion with regard to service of notice and on the basis of presumption of service after expiry of 30 days of its sending through registered post, no cause of action has ever arisen to opposite party No.2 to maintain the instant complaint. The entire proceedings of Criminal Complaint Case under Section 138 of Negotiable Instruments Act, 1881, Police Station-Bhadohi, District- Bhadohi, pending before the court of Chief Judicial Magistrate, Bhadohi at Gyanpur, are hereby quashed - the instant application under Section 482 Cr.P.C. is allowed. - Hon'ble Anish Kumar Gupta, J. For the Applicant : Amit Daga,Vivek Kumar Singh For the Opposite Party : G.A.,Surya Pratap Singh Parmar ORDER HON'BLE ANISH KUMAR GUPTA, J. 1. Heard Sri Amit Daga, learned counsel for the applicant, Sri Priyansh Mishra, Advocate holding brief of Sri Surya Pratap Singh Parmar, learned counsel appearing for opposite party N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by one Nurul Basar in his own name alleging in the opening paragraph of the said complaint that he is working in the firm M/s Evergreen Carpets as an Accountant and he has been authorized to file the complaint. Aggrieved by the aforesaid complaint lodged by the said Nurul Basar, who was the Accountant of M/s Evergreen Carpets, the instant application under Section 482 Cr.P.C. has been filed by the Proprietor of M/s Universal Carpets, namely, Mohd. Mohsin. 4. Learned counsel for the applicant has raised three broad submissions: (i) In the instant case, cheque was dishonoured for the reason 'referred to the drawer'. Therefore, he submits that due to aforesaid reason for dishonour of cheque is not covered within the provisions of Section 138 of N.I. Act, 1881. Hence, no offence under Section 138 of N.I. Act is made out against the applicant. (ii) Learned counsel for the applicant further submits that in the complaint under Section 138, it has been that the legal notice was issued on 19.12.2018 through registered post, however, there is no assertion in the complaint as well as in the statement of complainant recorded under Section 200 Cr.P.C. that when such notice was served ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when no payment was made in compliance of the aforesaid notice on 14.1.2019, the complaint case was filed. 9. With regard to the first submission advanced by learned counsel for the applicant, it would be relevant to refer the provisions of Section 138 of the N.I. Act, 1881, which reads as under: 138. Dishonour of cheque for insufficiency, etc. of funds in the account. - Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 138 of the Act. 13. The court while exercising its jurisdiction for taking cognizance of an offence under Section 138 of the Act was required to consider only the allegations made in the complaint petition and the evidence of the complainant and his witnesses, if any. It could not have taken into consideration the result of the complaint petition filed by the respondent No. 2 or the closer report filed by the Superintendent of Police in the First Information Report lodged by the appellant against him. 12. So far as the controversy with regard to dishonour of the cheque for the reasons 'referred to the drawer' is concerned, it has been specifically dealt with by a Division Bench of the Supreme Court in the case of Electronics Trade Technology Development Corpn. Ltd. , Secunderabad Vs. Indian Technologists Engineers (Electronics) (P) Ltd. and another (1996) 2 SCC 739 wherein it has been categorically held by the Apex Court that if the cheques were dishonoured for the reasons (i) referred to the drawer; (ii) instructions for stoppage of payment and stamped; (iii) exceeds agreement, all those conditions are to be covered within the meaning of Section 138 of N.I. Act, 1881, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te the efficacy of banking operations and to ensure credibility in transacting business through cheques. It is for this reason we are of the considered view that the observations of this Court in Electronics Trade Technology Development Corpn. Ltd. In paragraph 6 to the effect suppose after the cheque is issued to the payee or to the holder in due course and before it is presented for encashment, notice is issued to him not to present the same for encashment and yet the payee or holder in due course presents the cheque to the bank for payment and when it is returned on instructions, Section 138 does not get attracted , do not fit in with the object and purpose for which the above chapter has been brought on the statute-book. 15. The judgement of the Apex Court in the case of Raj Kumar Khurana (supra) which has been highly relied upon by the learned counsel for the applicant, in view of the previous binding precedent of the Apex Court and specifically which has been duly approved by the Three Judges Bench of the Apex Court in the case of Modi Cements (supra) , in the considered opinion of this Court, the judgements relied upon by the learned counsel for the applicant is per in-curiu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esumed to be served if it does not come back within thirty days. In a situation of this nature, there was no occasion for the Court to hold that service of notice could not be effected within a period of thirty days. 19. In view thereof, in the instant case, legal notice was sent on 19.12.2018, therefore, for want of any specific averment and proof of service, if the presumption of service of notice in reasonable time is raised, it should be deemed to have been served at best within a period of 30 days, from the date of its post i.e. 17.1.2019. However, in the instant case, the complaint itself has been filed on 14th January, 2019. Thus, prima facie on 14.1.2019, no offence under Section 138 of N.I. Act, 1881, was attracted as after presumed service on 17.1.2019 still 15 days were required for response by applicant. The opposite party No.2 was still required to wait for another 15 days. Therefore, no offence under Section 138 of N.I. Act, 1881, was made out against the applicant on the relevant date when the complaint was filed. 20. Further, the complaint has been filed by the power of attorney holder in his own name. Though the payee of the cheque can maintain a complaint through ..... X X X X Extracts X X X X X X X X Extracts X X X X
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