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2023 DIGILAW 675 (JHR)

Shristidhar Mahto v. State of Jharkhand

2023-05-11

SANJAY KUMAR DWIVEDI

body2023
JUDGMENT : Heard Mr. Mohit Prakash, learned counsel for the petitioner, Ms. Sushma Aind, learned counsel for the State and Mr. Shadab Bin Haque, learned counsel for the O.P. No.2 2. The present petition has been filed for quashing the order dated 17.05.2014 passed by the learned Chief Judicial Magistrate, Gumla in connection with Complaint Case No. 39 of 2013 whereby he has been pleased to call upon the petitioner to face the trial under section 138 of N.I. Act. 3. The complaint petition has been filed alleging therein that the petitioner and complainant were business partners earlier. On 10.04.2012 the petitioner demanded a huge sum of Rs. 30 lakhs from the Complainant for purchasing 4, 5 plots of land and the Petitioner assured that he would return money very soon. The Complainant somehow managed Rs.30,000,00/-(Thirty Lakhs only) and gave to the Petitioner in part wise and in lieu thereof the petitioner has given a cheque of Rs.30,000,00/- (Thirty Lakhs only) to the complainant. It was further alleged that the complainant has produced the cheque on 25/08/2012, 30/08/2012 and 25/09/2012 respectively but all the times the cheque was dishonoured because of insufficient fund. The complainant informed this fact to the petitioner but the petitioner all the times requested for more time for repayment of the amount. But when the petitioner did not pay back the loan amount, the complainant has sent a legal notice dated- 01/11/2012 to the petitioner and on receiving the said notice the petitioner met the complainant and suggested for some time for repayment of Rs.30,000,00/-(Thirty Lakhs only) and also requested not to institute any case. It was further alleged that after one and half months the complainant again met the petitioner and demanded his money and the petitioner refused to pay back the money to the complainant. Thereafter the complainant has again sent the legal notice dated 21/12/2012. It was further alleged that while taking Rs.30,000,00/-(Thirty Lakhs only) both the parties entered into an agreement wherein the petitioner agreed to register his house (total value of Rs.10,000,00/-(Ten Lakhs only)) in the name of the Complainant if the repayment was not made.. 4. Learned counsel for the petitioner submits that the learned court has taken cognizance on 17.05.2014. It was further alleged that while taking Rs.30,000,00/-(Thirty Lakhs only) both the parties entered into an agreement wherein the petitioner agreed to register his house (total value of Rs.10,000,00/-(Ten Lakhs only)) in the name of the Complainant if the repayment was not made.. 4. Learned counsel for the petitioner submits that the learned court has taken cognizance on 17.05.2014. He submits that the cheque was presented on 25.09.2012 and legal notice was sent on 01.11.2012 that is after 30 days of the mandatory provision made under section 138 of N.I. Act. He submits that second notice dated 21.12.2012 is also not in accordance with law and in view of statutory provision if the compliance is not there the order summoning the petitioner is bad in law. 5. On the other hand Mr. Shadab Bin Haque, learned counsel for the O.P. No.2 submits that these are the submission which are subject matter of trial and once the notice is issued presumption is there that the notice has been received and that is the subject matter of trial. To buttress his argument, he relied in the case of “Ajeet Seeds Ltd. v. K. Gopala Krishnaiah”, AIR 2014 SC 3057 . He further submits that in light of section 27 of the General Clause Act even notice is unserved it is deemed to have been served on that address as held by the Hon’ble Supreme Court in that case. On the deemed service of notice he referred to the case of ‘N.Parameshwaran Unni v. G.Knnan and Anr”, AIR 2017 SC 1681 . He submits that warrant of arrest has been issued against the petitioner. On these grounds he submits that there is no illegality in the summoning order and this Court may not interfere. 6. In the case in hand, the entire argument is on the interpretation of clause ‘c’ of the proviso to section 138 of N.I. Act. In light of the argument the Court is only required to answer as to whether the case was filed prematurely or not. Section 138(c) of the N.I.Act is quoted below: “(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.” 7. Section 138(c) of the N.I.Act is quoted below: “(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.” 7. On perusal of clause (c) of section 138 N.I.Act, it is crystal clear that if the drawer of the cheque failed for payment of cheque amount within 15 days of the receipt of the notice, then only the case can be filed. Once the statutory provision has been provided in a statute it is required to be followed and that is the mandate of law to be followed the provision of that statute. Admittedly in the case in hand, the required notice was issued on 01.11.2012 and second notice was issued on 21.12.2012 which is not in dispute, however, there is strict bar of filing the case in view of clause(c) of section 138 of N.I. Act before expiry of 15 days. Reference may be made to the case of “Yogendra Singh v. Savitry Pandey’, (2014) 10 SCC 713 . Paragraph no.34, 35 and 35 of the said judgment are quoted below: “34. Insofar as the present reference is concerned, the debate broadly centres around clause (c) of the proviso to Section 138 of the NI Act. The requirement of clause (c) of the proviso is that the drawer of the cheque must have failed to make the payment of the cheque amount to the payee within 15 8 days of the receipt of the notice. Clause (c) of the proviso offers a total period of 15 days to the drawer from the date of receipt of the notice to make payment of the cheque amount on its dishonour. 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. 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 filed 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 the law. It is not the question of prematurity of the complaint where it is filed before the 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 the 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 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 9 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. v. Pennar Peterson Securities Ltd., (2000) 2 SCC 745 : 2000 SCC (Cri) 546 : AIR 2000 SC 954 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.” 8. 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.” 8. The case in hand, on this direction answer by the Hon’ble Supreme Court in the case of “ Yogendra Singh v. Savitry Pandey’ (supra) wherein it has been held that reading of section 138 of N.I.Act along with section 142(b) of the N.I.Act which reiterates the position to the point of time when cause of action is arisen and it has been held that no offence can be said to have been committed the presumption under proviso (c) of section 138 of the said Act has in fact elapsed and it has been held that taking cognizance thereof, period of 15 days from the date of which the notice has been served on the drawer has been elapsed. 9. Thus if there is statutory provision that is required to be looked into which is lacking in the case in hand. 10. Accordingly, order taking cognizance dated 17.05.2014 passed by the learned Chief Judicial Magistrate, Gumla in connection with Complaint Case No. 39 of 2013, is set aside. 11. Admittedly the amount has been taken by the petitioner and in that viewof the matter the O.P.No.2 cannot be allowed to be remediless and the answer to this has already been answered by the Hon’ble Supreme Court in the case of ‘ Yogendra Singh v. Savitry Pandey’(supra) in paragraph no.41 of the said judgment which is quoted hereinbelow: “41. Section 142 of the NI Act prescribes the mode and so also the time within which a complaint for an offence under Section 138 of the NI Act can be filed. A complaint made under Section 138 by the payee or the holder in due course of the cheque has to be in writing and needs to be made within one 11 month from the date on which the cause of action has arisen under clause (c) of the proviso to Section 138. The period of one month under Section 142(b) begins from the date on which the cause of action has arisen under clause (c) of the proviso to Section 138. The period of one month under Section 142(b) begins from the date on which the cause of action has arisen under clause (c) of the proviso to Section 138. However, if the complainant satisfies the court that he had sufficient cause for not making a complaint within the prescribed period of one month, a complaint may be taken by the court after the prescribed period. Now, since our answer to Question (i) is in the negative, we observe that the payee or the holder in due course of the cheque may file a fresh complaint within one month from the date of decision in the criminal case and, in that event, delay in filing the complaint will be treated as having been condoned under the proviso to clause (b) of Section 142 of the NI Act. This direction shall be deemed to be applicable to all such pending cases where the complaint does not proceed further in view of our answer to Question (i). As we have already held that a complaint filed before the expiry of 15 days from the date of receipt of notice issued under clause (c) of the proviso to Section 138 is not maintainable, the complainant cannot be permitted to present the very same complaint at any later stage. His remedy is only to file a fresh complaint; and if the same could not be filed within the time prescribed under Section 142(b), his recourse is to seek the benefit of the proviso, satisfying the court of sufficient cause. Question (ii) is answered accordingly. 12. In light of the direction issued by the Hon’ble Supreme Court in paragraph no.41 of the said judgment, it is open to the O.P.No.2 to file a fresh complaint case before the learned court as has been held in paragraph no.41 of the said judgment and if the same could not be filed within the time prescribed under section 142(b) of the said Act, O.P.No.2 can seek the benefit under the aforesaid proviso. 13. With the aforesaid observation and direction, Cr.M.P. No. 2479 of 2014 stands disposed. Pending I.A, if any, stands disposed of. Interim order is vacated.