Jharkhand High Court
Vivek Anand Son Of Sri Vijay Kumar Sharma vs The State Of Jharkhand on 19 July, 2021
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Revision No. 48 of 2012
Vivek Anand son of Sri Vijay Kumar Sharma, resident of J.J.
Enterprises, near Gupt Singh Kanda Khar, Hamidganj, P.O. &
P.S.- Daltonganj, District- Palamau ... ... Petitioner
-Versus-
1. The State of Jharkhand
2. Bakhtiyar Ahmad Khan, son of Late Hazi Ishaq Khan,
resident of Mohalla Muslim Nagar, P.O. & P.S.- Daltonganj,
District- Palamau ... ... Opp. Parties
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Mrinal Kanti Roy, Amicus Curiae
For the State : Mr. Ravi Prakash, A.P.P
For the Opp. Party No.2: Mr. Manoj Kumar No.2, Adv.
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Through Video Conferencing
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13/19.07.2021 Heard Mr. Mrinal Kanti Roy, Advocate, the learned amicus Curiae representing the petitioner.
2. Heard Mr. Ravi Prakash, the learned A.P.P. appearing on behalf of the Opposite Party - State.
3. Heard Mr. Manoj Kumar No.2, the learned counsel appearing on behalf of the Opposite Party No.2.
4. This criminal revision petition has been filed challenging the legality, propriety and correctness of the Judgment dated 24.10.2011 passed by the learned District & Sessions Judge-II, Palamau at Daltonganj in Criminal Appeal No. 4 of 2011 whereby and whereunder the appeal filed by the petitioner against the Judgment of conviction and the order of sentence dated 10.12.2010 passed by the learned Judicial Magistrate, 1st Class, Palamau at Daltonganj in connection with Complaint Case No. C-1263 of 2009 corresponding to T.R. No. 62 of 2010 has been dismissed. The petitioner has been convicted for offence under Section 138 of Negotiable Instruments Act, 1881 and has been sentenced to undergo Simple Imprisonment for three months and to pay fine of Rs. 4,00,000/- and in default, to undergo further Simple 2 Imprisonment for three months. It was also directed that the Complainant shall be compensated under Section 257 Cr.P.C to the tune of Rs.3.5 lakhs due to loss incurred by him.
Arguments by the learned Amicus on behalf of the petitioner
5. While advancing the arguments, learned Amicus Curiae submitted that the present case can be disposed of on a short point that the Complaint petition itself was premature as the statutory period prescribed under the provisions of Section 138 of the Negotiable Instruments Act, 1881 was not duly satisfied. Learned Amicus Curiae also submitted that this is without prejudice to the contention of the petitioner that the cheque itself was not issued against any debt or liability.
6. The learned counsel submitted that the material dates would be the date of issuance of cheque of Rs.3.5 lakhs on 24.10.2009; the cheque bounced on 10.11.2009 on account of "insufficient funds" and the legal notice was dispatched through registered cover on 19.11.2009. He submitted that there is no evidence of service of the legal notice to the petitioner and accordingly, the learned court below has considered deemed service of notice, which according to the learned Amicus Curiae could has been taken only upon expiry of 30 days from the date of dispatch of the legal notice. The learned Amicus Curiae submitted that accordingly, the deemed service of the legal notice can at best be taken as 18.12.2009. He submitted that thereafter, 15 days was required to be given to the petitioner to make the payment to the Complainant, but the Complaint case was filed on 22.12.2009 itself i.e. on the 4th day from the date of deemed service of notice, if taken as 18.12.2009. The learned Amicus Curiae submitted that in view of the aforesaid facts, the Complaint itself was premature and it was no Complaint in the eyes of law as the condition precedent for filing of the complaint case under Section 138 of the Negotiable Instruments Act, 1881 was not satisfied on the date when the 3 complaint petition was filed and accordingly, the learned court below could not have presumed that the cheque was issued in discharge of any legal debt, as the complaint itself was nonest in the eyes of law.
Arguments of the Opposite Parties
7. Learned counsel appearing on behalf of the Opposite Party No.2 did not dispute the aforesaid dates. However, he submitted that in case the Complaint is held to be premature, then the right of the Opposite Party No.2 may not be taken away in view of the fact that Opposite Party No.2 can still file a fresh Complaint case by explaining the delay in filing the complaint case.
8. The learned A.P.P. appearing on behalf of the State also submitted that the timelines which are prescribed for filing a case under Section 138 of the Negotiable Instruments Act do not appear to have been satisfied in the present case and the complaint case appears to be premature. He supported the submissions advanced on behalf of Opposite Party No.2.
Findings of this court
9. The prosecution story, in brief, is that the petitioner namely, Vivek Anand in order to discharge his debt, issued a cheque bearing No.503032 of Rs.3.5 lakhs of Punjab National Bank on 24.10.2009 in favour of the Complainant. It was alleged that the Complainant deposited the said cheque in his account for encashment on 10.11.2009, which got dishonoured due to insufficient fund. Thereafter, the Complainant sent a legal notice to the petitioner through registered post on 19.11.2009 and demanded the cheque amount from the petitioner to which he did not respond and did not refund the cheque amount to the Complainant. Therefore, the Complainant instituted a Complaint on 22.12.2009.
10. Upon enquiry under Section 202 Cr.P.C., a Prima facie case under Section 138 of Negotiable Instruments Act was found to be made out against the petitioner. The substance of accusation was 4 explained to the petitioner on 22.03.2010 for the offence under Section 138 of Negotiable Instruments Act to which the petitioner pleaded not guilty and claimed to be tried.
11. The Complainant examined himself as C.W.-5. He has deposed that on 24.10.2009, the accused had given him a cheque of Rs.3.5 lakhs. He has further deposed that there was a partnership work between him and the petitioner and for that purpose, he had given him a debt of Rs.3 lakhs. On final settlement done between them on 24.10.2009, a profit of Rs.61,000/- was shown in his favour for his 33% share in the partnership work and the said cheque of Rs.3.5 lakhs bearing cheque no.503032 of Punjab National Bank was given to him after calculating the debts and his profit. The cheque was submitted for encashment in his account of State Bank of India, Bazar Branch on 10.11.2009. The said cheque was dishonoured due to insufficient fund in the account of the petitioner. Thereafter, the said cheque was returned to him on 10.11.2009 with a memo. On 19.11.2009, he sent a legal notice through registered post to the petitioner and when the petitioner did not reply, he opted to file a Complaint. He identified his signature on the last page of the complaint which is marked as Exhibit-1. He has also proved the said cheque and the same has been marked as Exhibit-2. He has also proved the cheque return memo as Exhibit-3. The postal receipt has been marked as Exhibit-4 and the legal notice has been marked as Exhibit-5. This witness has been thoroughly cross-examined by the defence, but there is no dispute on the aforesaid material dates with regard to the cheque involved in the present case. The other prosecution witnesses have also supported the prosecution case. Statements of the petitioner under Section 313 of Cr.P.C. were recorded and the petitioner inter alia denied service of legal notice regarding bouncing of the cheque. The defence version, as per the evidence adduced by the accused himself under Section 315 Cr.P.C., was that the cheque was given to the Complainant by way of sureties.
512. The learned court below considered the evidences on record including the defence evidence and the arguments of the parties and rejected the plea of the defence that the cheque was given to the Complainant by way of sureties and also considered the presumption under section 139 of the Negotiable Instrument Act, 1881 and held the petitioner guilty of offence under Section 138 of the Negotiable Instrument Act, 1881.
13. The learned trial court also considered that the legal notice in the present case was issued to the petitioner at his address through registered post and hence under General Clauses Act, it shall be presumed that the notice was properly served upon the petitioner and ultimately held that all the ingredients for the offence under Section 138 of the Negotiable Instrument Act, 1881 were present to convict the petitioner. However, the learned trial court did not consider the date on which the notice will be taken as deemed to have been served upon the petitioner and as to whether the required time lines were followed for the purposes of filing the Complaint under Section 138 of the Negotiable Instrument Act, 1881. The learned appellate court also did not consider the aforesaid aspect of the matter and confirmed the trial court judgment.
14. In the light of the submissions advanced, the only question which is required to be answered in the present case is as to whether on the date of filing of the complaint case under Section 138 of the Negotiable Instruments Act, 1881, the cause of action had crystalized or the complainant itself was pre-mature?
15. The material dates are: -
24.10.2009-date of issuance of cheque of Rs.3.5 lakhs; 10.11.2009 -the cheque bounced on account of "insufficient funds"
19.11.2009-the legal notice was dispatched through registered cover.
22.12.2009-Complaint case was filed.6
.
16. This Court finds that admittedly, there is no evidence of service of the legal notice to the petitioner and accordingly, the learned courts below has considered deemed service of notice by referring to the General Clauses Act.
17. This Court is of the considered view that presumption regarding service of notice sent through registered cover can be drawn only upon expiry of 30 days from the date of dispatch of notice as has been held by the Hon'ble Supreme Court in the Judgment reported in (2008) 13 SCC 689 (Subodh S. Salaskar vs. Jayprakash M. Sah and Another). In the said judgment, the notice was sent through speed post and although the actual date of service of notice was not known, the Complainant proceeded on the basis that the same was served within the reasonable period. It was held that if the presumption of notice within the reasonable period is raised, the deemed service at best can be taken to be 30 days from the date of its issuance and the accused was required to make payment in terms of the said notice within 15 days thereafter and the complaint petition therefore could have been filed after expiry of 15 days given to the accused for payment of money after receipt of notice.
18. In the judgment passed by the Hon'ble Supreme Court reported in (2014) 10 SCC 713 (Yogendra Pratap Singh vs. Savitri Pandey and Another), it has been held by the Hon'ble Supreme Court at Paragraphs- 30, 31, 36, 37 and 38 which read as under:
30. Section 138 of the NI Act comprises of the main provision which defines the ingredients of the offence and the punishment that would follow in the event of such an offence having been committed. Appended to this section is also a proviso which has three clauses viz.
(a), (b) and (c). The offence under Section 138 is made effective only on fulfilment of the eventualities contained in clauses (a), (b) and (c) of the proviso. For completion of an offence under Section 138 of the NI Act not only the satisfaction of the ingredients of offence set out in the 7 main part of the provision is necessary but it is also imperative that all the three eventualities mentioned in clauses (a), (b) and (c) of the proviso are satisfied. Mere issuance of a cheque and dishonour thereof would not constitute an offence by itself under Section 138.
31. Section 138 of the NI Act has been analysed by this Court in Kusum Ingots & Alloys Ltd. wherein this Court said that the following ingredients are required to be satisfied for making out a case under Section 138 of the NI Act: (SCC p. 753, para 10) "(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability;
(ii) that 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;
(iii) that cheque is returned by the bank unpaid, either because the amount of money standing to the credit of the 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 the bank;
(iv) the payee or the holder in due course of the cheque 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 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(v) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice."
36. A complaint filed before the expiry of 15 days from the date on which notice has been served on drawer/accused cannot be said to disclose the cause of action in terms of clause (c) of the proviso to Section 138 and upon such complaint which does not disclose the cause of action the court is not competent to take cognizance. A conjoint reading of Section 138, which defines as to when and under what circumstances an offence can be said to have been committed, with Section 8 142(b) of the NI Act, that reiterates the position of the point of time when the cause of action has arisen, leaves no manner of doubt that no offence can be said to have been committed unless and until the period of 15 days, as prescribed under clause (c) of the proviso to Section 138, has, in fact, elapsed. Therefore, a court is barred in law from taking cognizance of such complaint. It is not open to the court to take cognizance of such a complaint merely because on the date of consideration or taking cognizance thereof a period of 15 days from the date on which the notice has been served on the drawer/accused has elapsed. We have no doubt that all the five essential features of Section 138 of the NI Act, as noted in the judgment of this Court in Kusum Ingots & Alloys Ltd. and which we have approved, must be satisfied for a complaint to be filed under Section 138. If the period prescribed in clause (c) of the proviso to Section 138 has not expired, there is no commission of an offence nor accrual of cause of action for filing of complaint under Section 138 of the NI Act.
37. We, therefore, do not approve the view taken by this Court in Narsingh Das Tapadia and so also the judgments of various High Courts following Narsingh Das Tapadia that if the complaint under Section 138 is filed before expiry of 15 days from the date on which notice has been served on the drawer/accused, the same is premature and if on the date of taking cognizance, a period of 15 days from the date of service of notice on the drawer/accused has expired, such complaint was legally maintainable and, hence, the same is overruled.
38. Rather, the view taken by this Court in Sarav Investment & Financial Consultancy wherein this Court held that service of notice in terms of Section 138 proviso (b) of the NI Act was a part of the cause of action for lodging the complaint and communication to the accused about the fact of dishonouring of the cheque and calling upon to pay the amount within 15 days was imperative in character, commends itself to us. As noticed by us earlier, no complaint can be maintained against the drawer of the cheque before the expiry of 15 days from the date of receipt of notice because the drawer/accused cannot be said to have committed any offence until then. We approve the decision of this Court 9 in Sarav Investment & Financial Consultancy and also the judgments of the High Courts which have taken the view following this judgment that the complaint under Section 138 of the NI Act filed before the expiry of 15 days of service of notice could not be treated as a complaint in the eye of law and criminal proceedings initiated on such complaint are liable to be quashed.
19. This Court finds that the law has been well settled by the aforesaid judgement that the cause of action for filing a Complaint case under Section 138 of the N.I. Act could not arise prior to expiry of 15 days from the date of service of the legal notice on the accused.
20. This Court also finds that even if the best case of the Complainant is taken into consideration, then the date of dispatch of the legal notice regarding bouncing of the cheque by the complainant is 19.11.2009 (through registered cover), the date of deemed service of legal notice upon the petitioner would be 18.12.2009 (30 days from dispatch of legal notice) and 15 days from the date of service of notice would expire only on or about 02.01.2010 and present complaint case has been filed on 22.12.2009 i.e. on the 4th day from the deemed service of notice, if taken as 18.12.2009.
21. This Court finds that in the light of the judgment passed by the Hon'ble Supreme Court reported in (2014) 10 SCC 713 (Yogendra Pratap Singh -versus- Savitri Pandey and another), the Complaint filed by the Complainant is pre-mature as the cause of action for filing the Complaint case under Section 138 of the Negotiable Instruments Act, 1881 had not crystalised on 22.12.2009 and accordingly, the Complaint itself was pre-mature and hence not maintainable.
22. Consequently, the condition precedent for filing the case under Section 138 of the Negotiable Instruments Act, 1881, having not been satisfied, the Complaint itself was not maintainable on the day it was filed and accordingly, the petitioner could not have been 10 convicted under the said Section. The question of any presumption regarding existing debt under Section 139 of the Negotiable Instruments Act, 1881 also could not arise as the Complaint itself was not maintainable.
23. Accordingly, the impugned Judgment dated 24.10.2011 passed by the learned District & Sessions Judge-II, Palamau at Daltonganj in Criminal Appeal No. 4 of 2011 and also the Judgment of conviction and the order of sentence dated 10.12.2010 passed by the learned Judicial Magistrate, 1st Class, Palamau at Daltonganj in connection with Complaint Case No. C-1263 of 2009 corresponding to T.R. No. 62 of 2010 are hereby set aside.
24. The petitioner is acquitted from the charge thereunder and is discharged from the liability of the bail bonds.
25. This Court also finds that in the aforesaid judgement reported in (2014) 10 SCC 713, the Hon'ble Supreme Court while holding that the Complaint as pre-mature also observed in Para-41 of the said judgement itself that the remedy for the Complainant was to file a fresh Complaint and satisfy the court regarding sufficient cause for delay.
26. With the aforesaid findings and observations, the present criminal revision petition is hereby allowed.
27. Pending interlocutory application, if any, is closed.
28. The parties may proceed as per law.
Appreciation for Amicus Curiae and Payment:
29. This Court observes that vide order dated 07.07.2021, Mr. Mrinal Kanti Roy, Advocate was appointed as Amicus Curiae in this case by this Court. This Court records its appreciation for the valuable assistance accorded by the learned Amicus Curiae in final disposal of this case. The Secretary, Jharkhand High Court Legal Services Committee is directed to ensure that the legal remuneration of the learned Amicus Curiae is duly paid to him within a period of 4 weeks upon submission of bills by him.
1130. The office is directed to provide a copy of this order to Mr. Mrinal Kanti Roy, the learned Amicus Curiae and also to the Secretary, Jharkhand High Court Legal Services Committee.
31. Let the lower court records be sent back to the court concerned.
32. Let this order be communicated to the learned court below through FAX /e-mail.
(Anubha Rawat Choudhary, J.) Saurav /