Mahesh Kumar vs Bharat Nagpal on 24 September, 2022
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 :-
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1 - 10 of 10 (2.17 seconds)Smt. Nibedita Das Aged About 50 Years vs The State Of Jharkhand on 29 January, 2024
7. Now, coming to the facts of the case, the perusal of the record reveals
that there is absolutely no averment made in the complaint that the
complainant received the information regarding dishonour of the said two
cheques issued by the petitioner on any day after 07.02.2022. So, the notice
ought to have been issued on or before 08.03.2022 but as the month of February
has only 28 days but admittedly the notice having been issued only after much
delay on 30.03.2022 certainly, the learned Magistrate has committed a grave
error in finding prima facie case for the offence punishable under Section 138 of
the N.I. Act even if the mandatory requirement of serving the notice upon the
respondent has not been complied with. At the cost of repetition, it is pertinent
to mention here that it has been held by the Hon'ble Gujarat High Court in the
case of B. K. Sarkar & Another vs. State of Gujarat & Another (supra) that, the
Magistrate has no power to condone the delay in issuance of notice as
contemplated under Section 138(b) of the N.I. Act.
Union Bank Of India vs Dinesh Kumar Sood on 5 January, 2024
15. Ld Counsel for the accused, on the other hand, has argued that the
Complainant has not been able to prove his case. It is firstly argued on behalf of
the Accused that the complainant bank is not a 'holder in due course' as there is
no endorsement on the cheque in question and no agreement between the
complainant bank and M/s Travel Centre has been placed on record to show that
the cheque was actually sold to the complainant. Ld Counsel for the Accused
has also argued that there is a delay of 3 days in sending the legal demand
notice to the accused as the date mentioned on the return memo is 26/07/2003
but the legal demand notice was posted to the accused on 27/08/2003. It is
argued that this delay in sending the legal demand notice cannot, in any
circumstance, be condoned by the court. Reliance is placed on the case of B.K
Sarkar v State of Gujarat [2008 Cri.L.J 1230 (Guj.)] in this regard. It is further
argued that the accused never received the legal demand notice as the address
on which the same was sent is that of M/S Travel Centre. It has also been argued
Union Bank of India Vs. Dinesh Kumar Sood PS: Rajinder Nagar Page 9 of 23
Digitally signed
by SHIPRA
DHANKAR
SHIPRA
Date:
DHANKAR 2024.01.05
17:16:51
+0530
by Ld Counsel for the accused that the accused never signed the cheque in
question and his signature was forged. He has relied upon Ex DW1/2 to show
that the specimen signature of the accused is different from the signature on the
cheque in question. Lastly, it has been argued that there is no bank seal on the
return memo and hence, the same does not stand proved.
DISCUSSION ON PRINCIPLES OF LAW
Union Bank Of India vs Dinesh Kumar Sood on 13 March, 2024
15. Ld Counsel for the accused, on the other hand, has argued that the
Complainant has not been able to prove his case. It is firstly argued on behalf of
the Accused that the complainant bank is not a 'holder in due course' as there is
no endorsement on the cheque in question and no agreement between the
complainant bank and M/s Travel Centre has been placed on record to show that
the cheque was actually sold to the complainant. Ld Counsel for the Accused
has also argued that there is a delay of 3 days in sending the legal demand
notice to the accused as the date mentioned on the return memo is 26/07/2003
but the legal demand notice was posted to the accused on 27/08/2003. It is
argued that this delay in sending the legal demand notice cannot, in any
circumstance, be condoned by the court. Reliance is placed on the case of B.K
Sarkar v State of Gujarat [2008 Cri.L.J 1230 (Guj.)] in this regard. It is further
argued that the accused never received the legal demand notice as the address
on which the same was sent is that of M/S Travel Centre. It has also been argued
Union Bank of India Vs. Dinesh Kumar Sood PS: Rajinder Nagar Page 9 of 23
Digitally signed
by SHIPRA
DHANKAR
SHIPRA
Date:
DHANKAR 2024.01.05
17:16:51
+0530
by Ld Counsel for the accused that the accused never signed the cheque in
question and his signature was forged. He has relied upon Ex DW1/2 to show
that the specimen signature of the accused is different from the signature on the
cheque in question. Lastly, it has been argued that there is no bank seal on the
return memo and hence, the same does not stand proved.
DISCUSSION ON PRINCIPLES OF LAW
Yogender vs Jag Narayan on 20 March, 2024
has been answered in negative by the decision of Hon'ble Gujarat High
Court in B.K. Sarkar And Anr. vs State Of Gujarat And Anr. 2008
CRILJ 1230 by holding that "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.".
Equitas Small Finance Bank Ltd vs Ravut Honamallappa Kappenavar on 1 March, 2025
26. Now at this juncture has referred the judgment
reported in 2008 (3) Crimes (HC) 230 (Gujarat) between
B.K Sarkar & Anr., Vs. State of Gujarat & Anr. In the said
case there is delay of one day in issuing demand notice.
The Hon'ble Gujarat High Court by referring Sec. 138 (b)
of NI Act has observed that there is no power to condone
delay in issuing notice u/Sec. 138 (b) of the Act. Power to
condone delay provided under Section 142 of the Act was
with regard to delay in filing complaint within one month
and could not be extended to condone delay with regard to
other lapses. In the said case, complaint was dismissed as
not maintainable and proceedings were quashed on that
sole ground.
Nand Kishor vs State Of U.P. And Another on 16 August, 2023
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.
Karan Singh Rathor vs State Of Himachal Pradesh & Anr on 24 July, 2024
and Ors. vs. State (Govt. of NCT of Delhi) and Anr. decided on 17.07.2001
and B.K.Sarkar and Anr. vs State of Gujarat and Anr. 2008 CRILJ1230 in
support of his submission.
A.B. Raghumallaraje Urs vs Subhash .N on 2 December, 2024
17. The learned counsel for the accused at this
juncture has referred the judgment reported in 2008 (3)
SCCH-24 10 C.C.13844/2022
Crimes (HC) 230 (Gujarat) between B.K Sarkar & Anr.,
Vs. State of Gujarat & Anr. In the said case there is delay
of one day in issuing demand notice. The Hon'ble Gujarat
High Court by referring Sec. 138 (b) of NI Act has
observed that there is no power to condone delay in
issuing notice u/Sec. 138 (b) of the Act. Power to
condone delay provided under Section 142 of the Act was
with regard to delay in filing complaint within one month
and could not be extended to condone delay with regard
to other lapses. In the said case, complaint was
dismissed as not maintainable and proceedings were
quashed on that sole ground.
Sabhajit Ramyash Yadav vs Nice Communication And Ors on 3 October, 2022
3. Having considered the scheme of section 138 and other
provisions of the Act, and after considering the judgment in the
case of B.K. Sarkar v. State of Gujarat reported in 2008
Cri.L.J. 1230, in my considered opinion, the learned Magistrate
was fully justified in rejecting the application for condonation of
delay in issuing statutory demand notice under section 138 of the
Act. Neither there is perversity nor there is error of jurisdiction
committed by the Magistrate.
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