Research › Search › Judgment

Himachal Pradesh High Court · body

2017 DIGILAW 538 (HP)

Fina Dass v. Vinod Kumar

2017-05-17

TARLOK SINGH CHAUHAN

body2017
JUDGMENT : Tarlok Singh Chauhan, J. This revision is directed against the judgment passed by learned Additional Sessions Judge, Shimla, Camp at Rohru on 18.6.2016 in Criminal Appeal No. 11-R/10 of 2014 whereby he upheld the judgment passed by learned Judicial Magistrate 1st Class, Court No. II, Rohru, District Shimla, H.P. on 23.9.2013/21.10.2013 in Case No. 26-3 of 2013 and convicted and sentenced the petitioner to undergo simple imprisonment for one month and to pay a sum of Rs.1,00,000/- as compensation under Section 138 of the Negotiable Instruments Act, 1881 (for short Act). 2. Bereft of any unnecessary detail, it is not in dispute that the complainant received a returning memo on 2.1.2013 and on 3.1.2013 he issued legal notice under the Act which was received by the accused only on 12.1.2013, but the complaint came to be filed on 23.1.2013 i.e. before the expiry of 15 days. 3. The moot question, therefore, is whether an offence under Section 138 of the Act can be said to have been committed when the period provided for under Section 138 Clause (c) of the proviso has not expired. 4. Section 138 of the Act, reads thus: “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 provisions of this Act, be punished with imprisonment for a term which may be extended to one year (w.e.f. 6.2.2003). 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, 20 [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. Explanation.— For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability.” 5. Somewhat similar issue came up before the three Judges Bench of the Hon’ble Supreme Court in Yogendra Pratap Singh vs. Savitri Pandey and another (2014) 10 SCC 713 and in paras 35 and 36 of the judgment, it was held as under: “35. Can an offence under Section 138 of the NI Act be said to have been committed when the period provided in clause (c) of the proviso has not expired? Section 2(d) of the Code defines ‘complaint’. According to this definition, complaint means any allegation made orally or in writing to a Magistrate with a view to taking his action against a person who has committed an offence. Commission of an offence is a sine qua non for filing a complaint and for taking cognizance of such offence. A bare reading of the provision contained in clause (c) of the proviso makes it clear that no complaint can be filed for an offence under Section 138 of the NI Act unless the period of 15 days has elapsed. Any complaint before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint at all in the eye of law. Any complaint before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint at all in the eye of law. It is not the question of prematurity of the complaint where it is filed before expiry of 15 days from the date on which notice has been served on him, it is no complaint at all under law. As a matter of fact, Section 142 of the NI Act, inter alia, creates a legal bar on the Court from taking cognizance of an offence under Section 138 except upon a written complaint. Since a complaint filed under Section 138 of the NI Act before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint in the eye of law, obviously, no cognizance of an offence can be taken on the basis of such complaint. Merely because at the time of taking cognizance by the Court, the period of 15 days has expired from the date on which notice has been served on the drawer/accused, the Court is not clothed with the jurisdiction to take cognizance of an offence under Section 138 on a complaint filed before the expiry of 15 days from the date of receipt of notice by the drawer of the cheque. 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 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. 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. vs. Goverdhan Das Partani (2000) 7 SCC 183 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.” 6. The aforesaid exposition of law makes it evidently clear that the complaint under the Act filed before the expiry of 15 days is pre-mature and cannot be treated as a legally constituted complaint in the eyes of law. Therefore, the proceedings initiated on the basis of such complaint are liable to be quashed and set-aside. 7. Resultantly, there is merit in this petition and the same is accordingly allowed and the judgment dated 18.6.2016 passed by learned Additional Sessions Judge, Shimla, Camp at Rohru in Criminal Appeal No. 11-R/10 of 2014 affirming the judgment passed by learned Judicial Magistrate 1st Class, Court No. II, Rohru, District Shimla, H.P. on 23.9.2013/21.10.2013 in Case No.26-3 of 2013 whereby the petitioner has been convicted and sentenced to undergo simple imprisonment for one month and to pay a sum of Rs.1,00,000/- as compensation under Section 138 of the Act, is set-aside. The revision stands disposed of in the aforesaid terms.