Delhi District Court
Mahesh Kumar vs Bharat Nagpal on 24 September, 2022
IN THE COURT OF SH. PAWAN KUMAR
ADDL. SESSIONS JUDGE, SPL.FAST TRACK COURT
PATIALA HOUSE COURTS, NDD, DELHI
Crl. Rev. No.428/2019
Mahesh Kumar
s/o Late Sh. Ram Swaroop
R/o. III-F, 789,
Sector-3, Vaishali,
Ghaziabad.
..........Revisionist/Petitioner
Versus
Bharat Nagpal
son of Sh. Subah Nagpal,
R/o L-148B, Dilshad Garden,
Delhi-110095.
.........Respondents
1). The present criminal revision petition has been filed U/S 397 CrPC challenging as to the correctness, legality, propriety of the impugned order dated 15.11.2018 passed by the Ld. MM/PHC/New Delhi. Vide the impugned order, Ld. MM dismissed the complaint filed by the revisionist u/s 138 NI Act as not maintainable.
2). As per the brief facts of the case, the revisionist/complainant Cr. Rev. No.428/2019 page 1 of 9
has filed the complaint u/s 138 NI Act against the respondent. The impugned order is as follows:-
"Perusal of the record shows that in the present case, the cheque was issued on 10.06.2017, which was returned vide returning memo dated 10.06.2017 itself and thereafter, legal notice was issued on 28.09.2017. Further, present complaint was instituted on 10.01.2018, which is apparently barred by limitation".
3). The revisionist did not appear despite repeated directions and opportunity being given. Due to the absence of the revisionist, the court was constrained to decide the revision without hearing him.
4). On the other hand, Ld. Counsel for the respondent argued the matter at length and filed the brief written synopsis. The crux of the arguments of the Ld. Counsel for respondent is that the complainant has not complied the mandatory directions of the provisions of section 138 NI Act, wherein the drawee/payee of the cheque has to give the mandatory notice within 30 days of receiving of the cheque returning memo of the dishonour of the cheque. It is further argued that there is no provision of condonation of delay in giving the legal demand notice u/s 138 NI Act. Ld. Counsel for the respondent relied upon the following judgments to support of his submissions:-
1.B.K. Sarkar & Others v. State of Gujarat & ors.Cri.M.Appin. No.9909 of 2007
2.S.V. Muthye v. State & Anr. ILR (2002) I Delhi 634 Cr. Rev. No.428/2019 page 2 of 9
3.Amit Kumar Mishra v. the State (Govt. of NCT of Delhi & Anr). 1189/2018 and Crl. M.A.4326/2018 (stay)
5). As per the record, the present complaint was instituted on 10.01.2018. The cheque in question was issued on 10.06.2017 and on presentation, it was returned back as dishonoured vide cheque returning memo dated 05.09.2017. The legal demand notice was sent on 28.09.2017.
6). At this juncture, the relevant provision to deal with the issue in hand is proviso to section u/s 138 NI Act which is as follows:-
138......... Provided that nothing contained in this section shall apply unless--
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Section 142(b):- proviso:- "Such complaint is made within one month of the date on which the cause of action arises under Cr. Rev. No.428/2019 page 3 of 9 clause (c) of the proviso to section 138:
Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the court that he had sufficient cause for not making a complaint within such period".
7). In the case of Amit Kumar Mishra vs. State (Supra) the main contention of the petitioner was that no offence u/s 138 NI Act was made out as the legal notice was sent beyond 30 days of knowledge of the dishonour of the cheque. The Hon'ble High Court relied upon the judgment of the Apex court in the case of Kamlesh Kumar v. State of Bihar (2014) 2 SCC 424 and the judgment of Delhi High court in the case of Dheeraj Jain v. State & Anr. 2012 SCC On line Del 1687. In the case of Amit Kumar Mishra(Supra), Hon'ble Justice Manoj Kumar Ohri discussed the law point in detail and observed that :-
12. "In the present case, the complainant has already led his evidence and it has come on record that on receipt of the return memo, the complainant immediately got in touch with the accused and on not receiving any satisfactory answer, the legal notice was gi en on 06.02.2017. From a reading of the above, it is apparent that the legal notice of demand was issued beyond 30 days from the date of the return memo. I am of the opinion that in view of the above mentioned enunciation of Cr. Rev. No.428/2019 page 4 of 9 law, the complaint is not maintainable and the same is accordingly quashed. The pending application is also disposed of".
The reliance is placed on the judgment of High Court of Gujarat in the case of B.K. Sarkar and others v. State of Gujarat and others (Supra), wherein it is held that :-
"The only power under the N.I. Act to condone delay is provided under Section 142 of the N.I. Act, whereby it is provided that criminal complaint/case is required to be filed before the learned Magistrate within one month after completion of 15 days i.e. time limit as provided under Section 138 of the N.I. Act. However, for some reasons the complaint could not be filed within one month, the learned Magistrate is empowered to condone delay on sufficient grounds. Under the circumstances, whenever the Legislature has intended to condone the delay, same is provided and no such condonation of delay is provided in Section 138 of the N.I. Act. Under the circumstances, to condone delay in issuance of notice as contemplated under Section 138 of the N.I. Act would be to supplement to something what is not provided by the Legislature. Something which is not provided by the Legislature cannot be read in between. The provisions of statute, more particularly Section 138 of the N.I. Act is required to be complied with strictly and any deviation would entail consequences of non-maintainability of complaint. Under the circumstances, the contention on behalf of respondent No. 2. Original complainant to read powers of the Cr. Rev. No.428/2019 page 5 of 9 learned Magistrate to condone the delay by issuing notice under Section 138(b) of the N.I. Act considering provisions of Section 142 cannot be accepted. Power to condone delay as provided under Section 142 of the N.I. Act is to be read and considered only with regard to delay in filing the complaint within period of one month and it cannot be extended to condone delay with regard to other lapses more particularly delay in issuing notice as contemplated under section 138(b) of the N.I. Act.
............. Under the circumstances, when it is provided under section 138(b) of the N.I. Act that notice must be issued within a period of one month from the date of intimation from the Bank with regard to dishonour of cheque/instrument, same must be construed strictly and to dismiss the complaint and/or non-maintainability of the complaint if notice is not issued within stipulated time as provided under Section 138(b) of the N.I. Act is concerned, it cannot be said that the complainant is not non-suited on technical ground. On the contrary same would be in consonance with the provisions of the statute and legislative. Under the circumstances, the learned Chief Judicial Magistrate, Surendranagar has committed error in issuing summons upon the petitioners for the offences punishable under Section 138 of the N.I. Act by condoning delay of one day in issuing notice by the original complainant as provided under Section 138(b) of the N.I. Act. When the notice has not been issued beyond 30 days of receipt of intimation from the Bank, complaint under section 138 of the N.I. Act is Cr. Rev. No.428/2019 page 6 of 9 not maintainable. Under the circumstances, impugned complaint criminal case itself is not maintainable, and the same requires to be quashed and set aside by exercising powers under Section 482 of the Cr.P.C" .
08) It is the matter of record, as per the complaint that the cheque in question dated 10.06.2017 returned dishonoured for the reason of "funds insufficient" vide cheque returning memo dated 05.09.2017.
Further, the notice demanding the cheque amount in question was sent on 29.09.2017 by registered post and the complaint was filed on 10.01.2018.
09) In compliance of the provision of section 138 NI Act, the drawee has to send the legal demand notice within 30 days of receiving the information of return of the cheque as unpaid. I agree with the submissions made by the respondent and the law relied upon that there is no provision of condonation of delay in sending the legal demand notice. In the present case, the cheque was returned unpaid vide cheque returning memo on 05.09.2017 and the notice dated 28.09.2017 was dispatched vide registered post on 29.09.2017. Hence, it is clear from the record that the legal demand notice was sent within the period of 30 days from the date of dishonour of the cheque in question.
10). As per the provision of section 142 NI Act, that complainant has to file the complaint within one month of the date on which the Cr. Rev. No.428/2019 page 7 of 9 cause of action arises under clause c of the proviso to section 138 NI Act. It means, the period of limitation of filing the complaint is one month after the expiry of 15 days of receiving legal demand notice by the drawer. From the record, it is clear that there is a delay in instituting the present complaint. An application for condonation of delay u/s 142(b) of NI Act has been filed with the complaint. As per proviso to section 142(b) , the Trial court has discretion to condon the delay in filing the complaint, if the complainant satisfies the court that he had sufficient cause for non making the complaint within the prescribed period.
11). As per the record, vide order 05.07.2018, the matter was put up for arguments on application for condonation of delay in filing of the complaint for 25.09.2018. On the date fixed, the regular court was on leave and the matter was fixed for 15.11.2018. On this date, the complaint was dismissed as not maintainable.
12). In the impugned order, there is a grave factual error to the fact that it is mentioned in the order that the cheque was returned vide returning memo dated 10.06.2017 itself, which is contrary to the record. On the cheque returning memo the date is 05.09.2017. Furthermore, since the matter was fixed for arguments on application for condonation of delay and the application has been filed as per the provision of section 142(b) for condonation of delay in filing the complaint and not for the condonation of sending the legal demand Cr. Rev. No.428/2019 page 8 of 9 notice. The condonation of delay u/s 142(b) NI Act is permissible and within the discretion of the court after being satisfied of the sufficient cause of delay in instituting the complaint. Although, the complaint has been dismissed as not maintainable, yet there is no observation regarding the application for condonation of delay.
13). The impugned order is factually incorrect and the complaint is maintainable as there is no delay in sending the legal demand notice. The Ld. Trial court had not passed any reasoned order on the application for condonation of delay u/s 142(b) NI Act. Hence, considering the facts and submissions and the material available on record, the revision is allowed with direction to the concerned court to revive the complaint to its original number and pass the reasoned order on the application for condonation of delay after giving opportunity to the complainant/revisionist.
14). Copy of this order be sent to the Ld. Trial Court alongwith trial court record.
15). File of criminal revision be consigned to record room.
Announced in Open Court
On 24th day of Sept.2022. (Pawan Kumar )
ASJ /Spl/ FTC / PHC / NDD
New Delhi /24.09.2022
Cr. Rev. No.428/2019 page 9 of 9