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Rajasthan High Court · body

2005 DIGILAW 1156 (RAJ)

Arvind Kumar v. Mahesh Kumar

2005-04-19

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-This revision petition under Section 397/401 CrPC is directed against the Order dated 11.08.2003 passed by the Additional District and Special Judge, SC/ST (Prevention of Atrocities) Cases, Pratapgarh (for short, “the revisional Court” hereinafter) in Criminal Revision Petition No. 9/2002, by which the learned revisional Court set aside the Order dated 10.05.2001 passed by the Judicial Magistrate, Chhoti Sadri, district Chittorgarh (for short , “the trial Court” hereafter) whereby the trial Court, recalled its order dated 011.1999 whereby trial Court took cognizance of the offence and issued process against the petitioner and dismissing the complaint filed by the complainant on the ground of its being premature and acquitted the accused-petitioner of the offence under Section 138 of the Negotiable Instrument Act.1881 (for short , “the Act”). .2. On 09.01.1999, respondent-complainant Mahesh Kumar filed a complaint under Section 138 of the Act before the trial Court stating therein that on 112.1998, accused-petitioner Arvind Kumar gave him a cheque, which, on being presented in the bank, was dishonored. On this, the complainant sent a notice dated 212.1998 which was received by the accused-petitioner on 212.1998. On 09.01.1999, the respondent-complainant filed complaint on the very day, i.e., on 09.01.1999, the trial Court took cognizance of the offence under Section 138 of the Act against the accused-petitioner. However, subsequently, vide order dated 10.05.2001, the trial Court recalled the order 09.01.1999 taking cognizance against the accused-petitioner, dismissed the complaint being premature and acquitted the accused of the aforesaid offence. Aggrieved with the order dated 10.05.2001, the complainant-respondent preferred a revision petition before the revisional Court which has been allowed vide impugned Order dated 11.08.2003 with a direction to the trial Court to proceed with the matter treating the order dated 09.01.1999 as valid. Hence this revision by the accused-petitioner. .3. I have heard learned Counsel for the parties and perused the orders passed by the Courts below. Section 138 of the Act reads as under:-“138. Hence this revision by the accused-petitioner. .3. I have heard learned Counsel for the parties and perused the orders passed by the Courts below. Section 138 of the Act reads as under:-“138. Dishonour of cheque for insufficiency, etc., of funds in the account.-Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid , either because of the amount of money standing to the credit of that 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 that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both: 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 fifteen days of the receipt of information by him for 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.” 4. The cause of action under the Provisos (b) and (c) of Section 138 of the Act for filing complaint cannot be said to arise merely on the cheque being dishonored but will arise only after giving of notice of demand of the amount of the cheque by payee or holder in due course of the cheque to the drawer of the cheque and coupled with the failure of the drawer of the cheque to pay that amount within 15 days of the date of service/receipt of notice on or by him. In G. Ravi Kumar vs. Ravindranath, 1998 (1) Crimes 86 (A.P.) the Andhra Pradesh High Court held as under:- “The cause of action for initiating proceedings under Section 138 of the Negotiable Instrument Act would arise only after expiry of 15 days of receipt of notice by drawer and not from the date of return of said notice without being served on drawer of cheque.” 5. In Shakti Travels & Tours vs. State of Bihar & Anr. 2002 (9) SCC 415 , Hon’ble Supreme Court has held as under:-“Undoubtedly, the accused has a right to pay the money within 15 days from the date of service of notice and only when he fails to pay, it is open for the complainant to file a case under Section 138 of the Negotiable Instruments Act, 1881.” 6. A perusal of the facts on record shows that cheque issued by the accused- petitioner was dishonoured by the bank. The notice dated 212.1998 was received by the petitioner on 212.1998 and the notice period of 15 days expired on 14.01.1999 and the cause of action arose to the complainant on 14.01.1999 but the complainant filed the complaint on 09.01.1999 i.e., at a premature stage. For initiating proceedings under Section 138 of the Act, as per Proviso (c) thereto, the drawer of such cheque must fail to male 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 notice by the drawer and not from the date of the notice. The cause of action for initiating proceedings under Section 138 of the Act arises only after expiry of 15 days of receipt of notice. The cause of action for initiating proceedings under Section 138 of the Act arises only after expiry of 15 days of receipt of notice. Therefore, the complaint was premature and in such an eventuality, the trial Court ought to have returned the complaint for filing the same on accruing the cause of action, or should have waited till maturity of the notice period, as held by the Hon’ble Supreme Court in Narsingh Das Tapadia vs. Goverdhan Das Partani & Anr., 2000 (7) SCC 183 , wherein the Apex Court held that mere presentation of the complaint in the Court cannot be held to mean that its cognizance had been taken by the Magistrate. If the complaint is found to be premature, it can await maturity or be returned to the complainant for filing later and its mere presentation at an early date need not necessarily render the complaint liable to be dismissed or confer any right upon the accused to absolve himself from the criminal liability for the offence committed. However, in the instant case, the trial Court, vide order dated 10.05.2001, recalled its order taking cognizance dated 09.01.1999, dismissed the cimplaint and acquitted the accused, whereas the trial Court ought to have either returned the complaint for filing the same on accruing the cause of action, or should have waited till maturity of the notice period. Instead of returning the complaint or waiting till maturity, the trial Court erred in law and on facts in recalling the order dated 09.01.1999, dismissing the complaint and acquitting the accused-petitioner of the offence vide its order dated 10.05.2001. The revisional Court, vide impugned order, set aside the order of the trial Court dated 10.05.2001 and directed the trial Court to proceed with the matter treating the order dated 09.01.1999 as valid, whereas, in fact, vide order dated 09.01.1999, the trial Court had erred in taking cognizance at a premature stage. In this view of the matter, the order dated 09.01.1999 and 10.05.2001 passed by the trial Court, as also the impugned order dated 11.08.2003 passed by the revisional Court, cannot be sustained in the eye of law and are liable to be set aside. 7. Consequently, the revision petition is allowed. The Orders dated 011.1999 and 10.05.2001 passed by the trial Court, as also the impugned order dated 11.08.2003 passed by the revisional Court, are set aside. 7. Consequently, the revision petition is allowed. The Orders dated 011.1999 and 10.05.2001 passed by the trial Court, as also the impugned order dated 11.08.2003 passed by the revisional Court, are set aside. The matter is remanded to the trial Court for passing order of cognizance afresh after expiry of the notice period in the light of the law laid down by the Hon’ble Supreme Court in Narsingh Das Tapadia’s case (Supra). They stay petitions also stand disposed off . The record of the trial Court be returned forthwith.