Himachal Pradesh High Court
Reserved On: 03.04.2025 vs Sandeep Kumar on 10 April, 2025
2025:HHC:10013 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No. 1323 of 2024 Reserved on: 03.04.2025 Date of Decision: 10.04.2025.
Naresh Kumar ...Petitioner
Versus
Sandeep Kumar ...Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes For the Petitioner : Mr. T.K. Verma, Advocate.
For the Respondent : None
Rakesh Kainthla, Judge
The petitioner has filed the present petition for quashing of complaint No. 193 of 2022, titled Sandeep Kumar vs. Naresh Kumar pending in the Court of learned Judicial Magistrate, First Class, Chopal, District Shimla, H.P. (learned Trial Court) (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
1Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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2. Briefly stated, the facts giving rise to the present petition are that the complainant filed a complaint under Section 138 of the Negotiable Instruments Act ( in short N.I.Act) before the learned Trial Court to take action against the accused.
It was asserted that accused No.1 Naresh Kumar represented to the complainant that he was a Director of accused No. 2 M/s NTS Online Services OPC Pvt. Ltd. The complainant agreed to online business through the accused. The complainant found subsequently that customers were not being provided with the required services. The complainant asked the accused to render the accounts and the accused admitted his liability to pay an amount of ₹53,999/-. The accused issued a cheque of ₹53,999/-
in the discharge of his legal liability, which was dishonoured with the remarks 'account closed'. This intimation was received by the complainant on 29.08.2022. The complainant issued a demand notice on 29.09.2022 asking the accused to make the payment within 30 days of receipt of the notice, however, the accused failed to do so. Hence, a complaint was filed before the learned Trial Court.
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3. Being aggrieved from the filing of the complaint, the accused No.1/petitioner filed the present petition asserting the cheque was presented beyond 30 days provided under Section 138(b) of N.I. Act and the essential requirement of Section 138 of N.I. Act was not satisfied, therefore, it was prayed that the present petition be allowed and the complaint filed by the respondent/complainant before the learned Trial Court be quashed.
4. Notice of the petition was issued to the respondent but none appeared on behalf of the respondent despite service.
5. I have heard Mr. T.K. Verma, learned counsel for accused No.1/petitioner. He submitted that complaint shows that the check returning memo was received on 29.08.2022 and the legal notice was issued on 29.09.2022. Section 138(b) of N.I. Act provides 30 days for issuing the notice. The notice was issued beyond the period of 30 days, which is a violation of Section 138 of N.I.Act. Therefore, he prayed that the present petition be allowed and the complaint be quashed.
6. I have given considerable thought to the submission made at the bar and have gone through the records carefully.
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7. The law relating to quashing criminal cases was explained by the Hon'ble Supreme Court in B.N. John v. State of U.P., 2025 SCC OnLine SC 7 as under: -
"7. As far as the quashing of criminal cases is concerned, it is now more or less well settled as regards the principles to be applied by the court. In this regard, one may refer to the decision of this Court in State of Haryana v. Ch. Bhajan Lal, 1992 Supp (1) SCC 335, wherein this Court has summarized some of the principles under which FIR/complaints/criminal cases could be quashed in the following words:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a 5 2025:HHC:10013 cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." (emphasis added)
8. Of the aforesaid criteria, clause no. (1), (4) and (6) would be of relevance to us in this case.
62025:HHC:10013 In clause (1) it has been mentioned that where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, then the FIR or the complaint can be quashed.
As per clause (4), where the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order dated by the Magistrate as contemplated under Section 155 (2) of the CrPC, and in such a situation, the FIR can be quashed. Similarly, as provided under clause (6), if there is an express legal bar engrafted in any of the provisions of the CrPC or the concerned Act under which the criminal proceedings are instituted, such proceeding can be quashed."
8. This position was reiterated in Ajay Malik v. State of Uttarakhand, 2025 SCC OnLine SC 185 wherein it was observed:
"8. It is well established that a High Court, in exercising its extraordinary powers under Section 482 of the CrPC, may issue orders to prevent the abuse of court processes or to secure the ends of justice. These inherent powers are neither controlled nor limited by any other statutory provision. However, given the broad and profound nature of this authority, the High Court must exercise it sparingly. The conditions for invoking such powers are embedded within Section 482 of the CrPC itself, allowing the High Court to act only in cases of clear abuse of process or where intervention is essential to uphold the ends of justice.
9. It is in this backdrop that this Court, over the course of several decades, has laid down the principles and guidelines that High Courts must follow before quashing criminal proceedings at the threshold, thereby 7 2025:HHC:10013 pre-empting the Prosecution from building its case before the Trial Court. The grounds for quashing, inter alia, contemplate the following situations : (i) the criminal complaint has been filed with mala fides; (ii) the FIR represents an abuse of the legal process; (iii) no prima facie offence is made out; (iv) the dispute is civil in nature; (v.) the complaint contains vague and omnibus allegations; and (vi) the parties are willing to settle and compound the dispute amicably (State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335)
9. The present petition has to be decided as per the parameters laid down by the Hon'ble Supreme Court.
10. In Sivakumar v. Natarajan, (2009) 13 SCC 623, an intimation was received by the complainant on 03.12.2003 and he issued the notice on 02.01.2004. It was laid down by the Hon'ble Supreme Court that the notice has to be issued within 30 days of the receipt of the information. The provisions of Section 9 of the General Clauses Act will not be applicable because the words 'from' and 'to' are not included. It was observed:-
"10. We may, however, at the outset notice that both clauses (a) and (b) of the proviso appended to Section 138 of the Act employed the term "within a period". Whereas clause (a) refers to the presentation of the cheque to the bank within a period of six months from the date on which it is drawn, clause (b) provides for the issuance of notice "to the drawer of the cheque, within thirty days of the receipt of information". The words "within thirty days of the receipt of information" are significant.
82025:HHC:10013 Indisputably, intimation was received by the respondent from the bank on 3-12-2003.
11. Parliament advisedly did not use the words "from the date of receipt of information" in Section 138 of the Act. It is also of some significance to notice that in terms of Section 9 of the General Clauses Act, 1897, whereupon reliance has been placed by the High Court, the statute is required to use the word "from" and for the purpose of including the last in a series of days or any other period of time, to use the word "to". The departure made from the provisions of Section 9 of the General Clauses Act by Parliament, therefore, deserves serious consideration.
12. Indisputably, the notice was issued on the 31st day and not within a period of thirty days from the date of receipt of intimation from the bank. If Section 9 of the General Clauses Act is not applicable, clause (b) of the proviso appended to Section 138 of the Act was required to be complied with by the respondent for the purpose of maintaining a complaint petition against the appellant.
13. In Munoth Investments Ltd. v. Puttukola Properties Ltd. [(2001) 6 SCC 582 : (2001) SCC (Cri) 1184] construing clause (a) of the proviso appended to Section 138 of the Act, this Court held: (SCC pp. 583-84, para 5) "5. In our view, the High Court committed material irregularity in not referring to the aforesaid evidence which was recorded by the Metropolitan Magistrate. Section 138(b) of the Act inter alia provides that the payee has to make a demand for the payment of money by giving a notice 'to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid'. So fifteen days are to be counted from the receipt of information regarding the return of the cheque as unpaid. In the present case, it is the say of the complainant that the cheque was presented for 9 2025:HHC:10013 encashment on the 12th; it was returned to the Bank on the 13th and information was given to the complainant only on the 17th, as 14th, 15th and 16th were Pongal holidays. The learned counsel fairly pointed out that in the complaint it has been stated that the complainant had received intimation with regard to the return of the said cheque from his banker on 13-1-1994. However, he submitted that this is an apparent mistake and for explaining that mistake the appellant has led the evidence before the trial court. Undisputedly, he pointed out that in the State of Tamil Nadu, 14-1-1994 to 16-1-1994 there were Pongal holidays and, therefore, the appellant came to learn about the dishonour of his cheque on 17-1-1994."
We, with respect, agree with the approach of the learned Judges.
14. Our attention has furthermore been drawn to a decision of the Kerala High Court in K.V. Muhammed Kunhi v. P. Janardhanan [1998 Cri LJ 4330 (Ker)], wherein construing clause (a) of the proviso appended to Section 138 of the Act, a learned Single Judge held: (Cri LJ p. 4331, para 3) "3. ... A comparative study of both the sections in the Act and the General Clauses Act significantly indicates that the period of limitation has to be reckoned from the date on which the cheque or instrument was drawn. The words 'from' and 'to' employed in Section 9 of the General Clauses Act are evidently clear that in cases where there is an ambiguity or suspicion with reference to the date of commencement of the period of limitation in any Act or special enactment, the words 'from' and 'to' employed in Section 9 of the General Clauses Act can be pressed into service." (See also K.C. Nanu v. N. Vijayan [(2007) 1 KLJ 326] .) We are in agreement with the aforementioned view.
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11. This judgment was followed by Delhi High Court in Deepak Nagar v. State, 2024 SCC OnLine Del 2053 and it was held that when the intimation was received on 16.03.2022 and a legal notice was issued on 16.04.2022, the same was beyond the period of limitation and no complaint is maintainable in such a case. It was observed:-
10. A Co-ordinate Bench of this Court in Dheeraj Jain v. State 2012 SCC OnLine Del 1687, held as under:--
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8. A perusal of Clause (b) to proviso to the Section clearly states that nothing contained in the section shall apply unless the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the amount of cheque by giving a notice in writing to the drawer of the cheque within 30 days of the receipt of the information by him from the bank regarding return of the cheque as unpaid. It may be noted that in the present case admittedly, as per the complaint, affidavit and legal notice, Respondent No. 2 came to know about the dishonour of the cheque on the 10th of July, 2010. The demand made by Respondent No. 2 was beyond the period of 30 days and now Respondent No. 2 cannot agitate that he be permitted to lead evidence to show that he received the knowledge of dishonour of the cheque on 12th July 2012, which was not the case even before the learned Trial Court.
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11. Even this Court in Amit Kumar Mishra v. The State (Govt. of NCT of Delhi) 2012 SCC OnLine Del 1687 held that 11 2025:HHC:10013 in case legal notice is issued beyond the period of 30 days, the complaint is not maintainable.
12. So far as aspect of computation of statutory period is concerned, reference may be made to the decisions of the Supreme Court in Econ Antri Ltd. v. Rom Industries Ltd. (2014) 11 SCC 769 and Rameshchandra Ambalal Joshi v. State of Gujarat (2014) 11 SCC 759 as well as this Court in Texco v. Bats Apparels Ltd. 2018 SCC OnLine Del 7724, Rayapati Power Generation Pvt. Ltd. v. Indian Renewable Energy Agency Ltd. (IREDA) 2022 SCC OnLine Del 295 and Simranpal Singh Suri v. State (2021) 1 HCC (Del) 183 In all these cases while dealing with the various provisions of Section 138 and 142 NI Act, it has been held that the date on which the cause of action arises, would be excluded while computing the statutory period mentioned in the various clauses of Section 138 NI and for Section 142.
13. Concededly, as per the allegations in the complaint, respondent No. 2 had received information about the dishonour of the cheque on 16.03.2022 whereafter, he had telephonically informed the petitioner about the said dishonour. It is also not disputed that the legal notice was issued on 16.04.2022, and upon failure to repay, the present complaint came to be filed.
14. In Texco (Supra), this Court observed:--
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8. The questions that arise for consideration in this case are; whether Section 9 of the General Clauses Act, 1897, is applicable to the statutory notice under section 138 of the Act. & whether the day on which the information is received by the complainant from the bank that the cheque has been dishonoured is to be included or excluded while computing the 30-day period prescribed for issuing the statutory notice.
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12. Seen from that perspective, the date on which the petitioner received the information of the dishonour of the cheque (i.e. 23.12.2006) is to be excluded for the purposes of computing the period of 30 days available under the Act for issuance of notice. On excluding the date 23.12.2006, from considering, it is seen that the notice issued on 22.01.2007 has been issued on the 30th day, which would bring the said notice within the period prescribed.
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15. Further, this Court in Rayapati Power Generation Pvt. Ltd. (Supra) observed:--
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14. In the present case, the primary issue raised by learned counsel for the petitioners during the course of submissions is that the legal demand notices were not issued by the complainant Company within 30 days of the receipt of information regarding dishonour of the cheques, i.e., from the date of the return memos, and thus the complaints are not maintainable. On the other hand, the complainant Company maintains that it was intimated of the dishonour of the cheques in question only when its Bank sent the aforesaid return statements, and the legal demand notices were issued within 30 days thereafter.
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21. The legal position, as culled out from the judicial dicta referred to hereinabove, is that while computing the limitation period of 30 days prescribed under Section 138(b) N.I. Act for issuance of a valid legal notice, the day on which intimation is received by the complainant from the bank that the cheque in question has been returned unpaid has to be excluded.
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16. Applying the abovementioned legal position to the present matter, it can be seen that admittedly while the information was received on 16.03.2022, the legal notice came to be issued on 16.04.2022. Even if the first day i.e. 16.03.2022 is excluded in computing the statutory period, the legal notice came to be issued on the 31st day i.e. beyond the statutory period provided under Section 138(b) of the NI Act."
12. In view of the above, the complaint could not have been filed as the cause of action had not accrued, therefore, the learned Trial Court erred in taking cognizance of the complaint and summoning the accused.
13. Consequently, the present petition is allowed and the complainant bearing No. 193 of 2022, titled Sandeep Kumar vs. Naresh Kumar pending before the learned Judicial Magistrate, First Class, Chopal, District Shimla is quashed qua the accused No.1/respondent.
14. The observations made hereinbefore shall remain confined to the disposal of the present petition and will have no bearing, whatsoever, on the merits of the case.
(Rakesh Kainthla) Judge 10th April, 2025 (ravinder)