Allahabad High Court
Nand Kishor vs State Of U.P. And Another on 16 August, 2023
Author: Subhash Chandra Sharma
Bench: Subhash Chandra Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:164171 Court No. - 80 Case :- CRIMINAL MISC. WRIT PETITION No. - 19722 of 2022 Petitioner :- Nand Kishor Respondent :- State of U.P. and Another Counsel for Petitioner :- Rajnish Dubey Counsel for Respondent :- G.A.,Alka Pandey,Sonu Kumar Tiwari Hon'ble Subhash Chandra Sharma,J.
1. Rejoinder affidavit filed by learned counsel for the petitioner is taken on record.
2. Heard learned counsel for the petitioner, learned counsel for the respondent as well as learned A.G.A. for the State and perused the record.
3. This writ petition is filed for the following reliefs:-
I. Issue a writ, order or direction in the nature of certiorari quashing the entire criminal proceeding of old Complaint Case No. 755 of 2017, and New Complaint Case No. 1798 of 2021, Vivek Sharma Vs. Nand Kishor under Section 138 N.I. Act, Police Station- Kavi Nagar, District Ghaziabad.
II. Issue a writ, order or direction in the nature of certiorari quash the order dated 13.07.2022 passed by Additional Session Judge Court No. 3 Ghaziabad in Criminal Revision No. 141 of 2021 (Nand Kishor Vs. State of U.P. and Vivek Sharma), as well as order dated 09.11.2017, passed by Additional Civil Judge (Pravar Khand) Additional Chief Judicial Magistrate Court No. 2, Ghaziabad arising out of old Complaint Case No. 755 of 2017, and New Complaint Case No. 1798 of 2021, (Vivek Sharma Vs. Nand Kishor) under Section 138 N.I. Act, Police Station Kavi Nagar, District Ghaziabad.
4. It is submitted by learned counsel for the petitioner that in this case the order passed by A.C.J.M. Court No. 2 Ghaziabad in Complaint No. 755 of 2017 dated 09.11.2017 under Section 138 of the N.I. Act was challenged in Criminal Revision No. 141 of 2021 before the learned court of Sessions which was decided on 13.07.2022 while rejecting the revision against which present petition has been preferred. It is submitted by learned counsel for the petitioner that in the complaint under Section 138 of the N.I. Act two cheques bearing No. 610035 and 610032 amounting to Rs. 8 lakhs were handed over by the petitioner to the respondent who presented them before the concerned bank but those cheques were subjected to dishonor on 26.04.2017 and 13.04.2017. It is further submitted that notice was given by the respondent to the petitioner on 11.07.2017 after 86 days which cannot be said to be within the period as provided under Section 138 (b). Where notice has not been given within the statutory period i.e. 30 days no proceedings under Section 138 N.I. Act can be maintainable. The learned trial court as well as the learned revisional court did not consider this statutory provision of law but entertained the complaint under Section 138 N.I. Act. Even this point was raised before the learned revisional court but it was also not taken into consideration and order was passed in routine manner, therefore it cannot sustain in the eye of law but being erroneous is liable to be set aside. He relied his argument in the case of B.K. Sarkar and Another Vs. State of Gujarat and Another decided on 12.09.2007 by the Gujarat High Court.
5. Learned counsel for the respondent as well as learned A.G.A. opposed the prayer as aforesaid and contended that though notice was given by him to the petitioner after the period of 30 days but only on this technical basis he cannot be exempted from liability. It is also contended that the learned courts below considered all these facts while passing the orders. It is also contended that complaint was filed within the period of limitation as provided in the Act, therefore, it cannot be said that only on account of delay in giving notice, the proceedings initiated under Section 138 of the N.I. Act stand vitiated but this petition being devoid of merit is liable to be dismissed.
6. Considered the submissions made by learned counsel for both the parties, the orders passed by the learned trial court as well as the revisional court and plea raised in memo of revision and the provisions as contained under Section 138 (b) of the N.I. Act.
7. Section 138 of the N.I. Act provides that:
(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.
8. It transpires from the aforesaid clause (b) of Section 138 that on dishonor of cheque, notice is to be given to the drawer of the cheque within 30 days. This statutory period of limitation for notice cannot be relaxed even by taking recourse of the provisions of Section 142(b) those are for the purposes of condoning delay in filing the complaint. Undoubtedly cheques were dishonored by the Bank on 26.04.2017 and 13.04.2017 and the notice was given by the respondent on 11.07.2017, that was after the statutory period as prescribed under Section 138(b) of the N.I. Act. It was beyond the period as stipulated. Learned trial court did not consider this aspect of law while entertaining the complaint and the learned revisional court also did not consider the plea relating thereto while deciding the revision. The order passed by the learned revisional court also shows that even a single line has not been mentioned in the order about this point of law though it was raised before the learned court by the revisionist/ the petitioner. In view of these facts of the case and the law as contained under Section 138(b) of the N.I. Act and the orders passed by the learned courts below this petition has force and is liable to be allowed.
9. As a result, this petition is allowed and order passed by the learned revisional court on 13.07.2022 is hereby set aside and it is directed that the learned revisional court is to pass the order afresh after giving an opportunity of hearing to both the parties.
Order Date :- 16.8.2023 Suraj Srivastav