Sanjay Kumar Alias Sanjay Sao Alias Sanjay Sao Kanhu Vs the State of Jharkhand

IN THE HIGH COURT OF JHARKHAND AT RANCHI

Cr. Rev. No. 116 of 2019

Sanjay Kumar Alias Sanjay Sao Kendu, Aged about 52 years, Son of Late Banshi Ram, resident of village – Jado Babu Chowk, P.O. & P.S. – Sadar, District - Hazaribag … … Petitioner

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Versus

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The State of Jharkhand

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Bihari Gope, Aged about 80 years, Son of late Lattu Gope, Resident of Bara Bazar, Gwala Toli, P.O. & P.S. – Sadar, District – Hazaribagh … … Opposite Parties

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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Petitioner : Mr. Santosh Kumar Soni, Advocate For the State : Mrs. Priya Shrestha, Advocate For the O.P. No.2 : Mr. Awanish Shankar, Advocate : Mr. Atul Kumar Tiwari, Advocate

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06 /06.03.2024 Heard the learned counsels for the parties.

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2. This criminal revision has been filed for the following relief:

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“That the petitioner in the instant case prays for setting aside the judgment dated 26.05.2018 whereby and whereunder the learned Additional Sessions Judge XIII Hazaribag was pleased to dismiss the Appeal No.46/17 preferred by the petitioner by confirming the order of Conviction passed by learned J.M., Ist Class, in Complaint Case No.149/13, T.R. No.289/17 order dated 08.05.2017.”

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3. The learned counsel for the petitioner submits that the only point involved in the present case is that the complaint itself was premature and, therefore, the complaint for bouncing of the cheque was itself not maintainable. He submits that although the learned courts have recorded that notice was served but no date of service of notice has been mentioned in the impugned order and even as per the evidence of the complainant or the evidences produced on record, there is no date of service of notice.

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4. The learned counsel submits that the notice was sent under registered cover and the question of presumption of service of notice would arise only upon completion of 30 days from the date of issuance of notice and thereafter 15 more days is required to be granted to the accused to make payment to the cheque amount and then only the cause of action to file the complaint case arises under the provisions of Negotiable Instruments Act.

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5. While giving the timeline, the learned counsel has stated that the cheque is dated 10.12.2012; it bounced on 11.12.2012; the notice

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was sent by registered cover on 27.12.2012; 30 days expired on 26.01.2013 and the case was filed on 23.01.2013.

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6. The learned counsel submits that even if it is assumed that the notice was served by 26.01.2013, the period of 15 days had not expired on the date of filing of the case. The cause of action to file the case could arise only after expiry of 15 days from 26.01.2013. 7. The learned counsel has relied upon a judgment passed by this Court in Criminal Revision No. 827 of 2012 (Manoj Kumar Nag Vs. The State of Jharkhand and another) decided on 13.07.2021 and submits that the said judgement has relied upon various judgments which in turn had relied upon the judgment passed by the passed by the Hon'ble Supreme Court reported in (2014) 10 SCC 713 (Yogendra Pratap Singh Vs. Savitri Pandey and another) and also the judgment reported in (2008) 13 SCC 689 (Subodh S. Salaskar Vs. Jayprakash M. Sah and another) and other judgments and held that the case was premature.

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8. The learned counsel appearing on behalf of the opposite party no.2 on the other hand while opposing the prayer of the petitioner has submitted that the notice was issued on 27.12.2012 and the petitioner ought to have paid the amount upon receipt of the summons and for this he relies upon a judgment passed by the Hon’ble Supreme Court reported in (2007) 6 SCC 555 (C.C. Alavi Haji Vs. Palapetty Muhammed and another) para 17 . The learned counsel has also submitted that the service of notice is not required to be proved.

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9. The learned counsel appearing on behalf of the State has referred to the impugned order to submit that the cheque had bounced on account of the fact that the bank account itself was closed. In this background it is submitted that there can be no dispute that the petitioner never intended to clear the debt. There is a presumption in favour of the complainant and, therefore, the impugned orders do not call for any interference.

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10. The learned counsels for the opposite parties have fairly submitted during the course of arguments that there is no specific date regarding service of notice to the petitioner reflecting from the impugned orders and also from the records of the learned court concerned. They simply submit that the postal receipt of sending the

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notice dated 27.12.2012 has been exhibited which was sent through registered cover.

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11. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, the aforesaid timeline regarding issuance of cheque and its bouncing is not in dispute. The cheque is dated 10.12.2012; it bounced on 11.12.2012; the notice was sent by registered cover on 27.12.2012; 30 days expired on 26.01.2013 and the complaint case was filed on 23.01.2013.

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12. The notice regarding bouncing of cheque was issued on 27.12.2012 through registered cover and admittedly, there is no service report regarding the service of notice upon the petitioner. 13. In the judgment passed by Hon’ble Supreme Court reported in (2007) 6 SCC 555 (supra) , the point for consideration was:-

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“Whether in absence of any averments in the complaint to the effect that the accused had a role to play in the matter of non-receipt of legal notice; or that the accused deliberately avoided service of notice, the same could have been entertained keeping in view the decision of this Court in Vinod Shivappa case?”

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Paragraph 10 of the aforesaid judgment clearly holds that where the payee dispatches the notice by registered post with correct address of the drawer of cheque, the principle incorporated in section 27 of the General Clauses Act would be attracted; the requirement of clause (b) of proviso to section 138 of the Act stands complied with and cause of action to file the complaint arises on the expiry of the period prescribed in Clause (c) of the said proviso for payment by the drawer of the cheque. Nevertheless, it would be without prejudice to the right of the drawer to show that he had knowledge that the notice was brought to his address.

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It has been held in paragraph no.15 of the aforesaid judgement that it is well settled that at the time of taking cognizance of the complaint under Section 138 of the Act, the court is required to be prima facie satisfied that a case under the said section is made out and the mandatory statutory procedural requirements have been complied with. It is then for the drawer to rebut the presumption about service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the cover was incorrect or that the letter was never tendered or that the report of the postman was incorrect. The Hon'ble Supreme Court in paragraph 16

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also observed that the entire purpose of requiring a notice is to give an opportunity to the drawer to pay cheque amount within 15 days of service of notice and thereby free himself from the penal consequences.

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Paragraph 17 of the judgement deals with the contention of the drawer who claims that he did not receive the notice and it has been held that such a drawer can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected and such a drawer cannot contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the General clauses Act and Section 114 of the Evidence Act. Paragraph 17 of aforesaid judgment is quoted as under:

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“17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of criminal law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the GC Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran case [(1999) 7 SCC 510 : 1999 SCC (Cri) 1284] if the “giving of notice” in the context of Clause ( b ) of the proviso was the same as the “receipt of notice” a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act.”

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In the said judgment, in the complaint it was averred (as mentioned in paragraph 18 of the judgement) that the complainant had issued lawyers notice intimating dishonour of cheque and demanded payment on 04.08.2001 and the same was returned on 10.08.2001 saying that the accused was out of station.

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14. This Court is of the considered view that unless the timeline prescribed under the provision of the Negotiable Instruments Act, 1881 are satisfied, the complaint itself will be premature and not

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maintainable. In such a case it cannot be argued by the complainant that the accused was to pay the cheque amount upon receipt of the summons from the court. Accordingly, the aforesaid judgment relied upon by opposite party no.2 reported in (2007) 6 SCC 555 (supra) does not apply to the facts and circumstances of the case.

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15. The point involved in this case is whether the complaint was filed upon expiry of the time line prescribed for filing the complaint case or it was a premature one.

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16. Altogether 3 witnesses were examined in support of the complaint and the aforesaid documents were exhibited. The complainant was examined as C.W-1 who exhibited the documents and was cross examined. The petitioner was in a state of complete denial when his statement was recorded and except stating that he was innocent, no further explanation was furnished and no defence witness was produced. It was the case of the complainant that the cheque for an amount of Rs. 3.0 lakhs were issued by the accused in discharge of debt arising out of a friendly loan.

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17. The findings of the learned trial court at para 8 to 12 are as follows:-

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“8. On careful perusing the evidences and materials available on the record, I find that the complainant has file the case after complying all the requirement as per NI Act and all the relevant documents i.e. purporting dishonoured cheque, bank return memo, copy legal notice, postal receipt has been exhibited in this case and the defence could not disproved and rebut the case of the complainant either during his defence or trial. I find that only defence has taken simple plea of false implication, which is not sufficient to disprove and rebuttal of the case of complainant.

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9. Section 138 of NI Act, speaks about dishonour of cheque for insufficiency, etc., of funds in the account. It speaks that 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 and 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 owner the cheque or that is exceeds the amount arranged to be paid from that account by an agreement made with that bank. Sub section (a) of 138 speaks that 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. Sub section (b) of 138 speaks that the payee of 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 30 days of the receipt of the information by him from the bank regarding the return of the cheque as unpaid. Sub section (c) of 138 Act speaks that 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 15 days of the receipt of the said notice. In this very

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case, I find that above cheque, which is ext. 1 was issued in favour of the complainant for discharge the loan (debt) liability of amount of Rs. 3,00,000.00, but it is returned by the bank unpaid because of account closed. I find that the above cheque was issued on 10.12.12 and it returned on 11.12.12 due to account closed, which is within time for presentation of the above cheque, which is compliance of Sub-section (a) of Section 138 of NI Act. I further find that on 27.12.12 legal notice was sent to the accused which is within the 30 days as per the requirement of sub-section (b) of Section 138 of NI Act and despite of receiving the notice the above amount was not returned. I find that the above facts has also been complied as per requirement of Section 138 of NI Act and the defence could not rebut the above facts.

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10. Section 139 of NI Act speaks about presumption in favour of holder. It speaks that it shall be presumed, unless the contrary is proved, that the holder of the cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability. As per the section, presumption is a rebuttable and the accused is a liberty to prove to the contrary. But, in this very case, I find that the accused could not rebut the above presumption, so as per the section, it shall be presumed that the holder (i.e. the complainant) receive the cheque for the discharge of debt Rs. 3,00,000.00, as above discussed.

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11. Section 146 speaks about bank’s slip prima facie evidence of certain facts. It speaks that the court shall, in respect of every proceeding under this chapter, on production of bank slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonoured of such cheque, unless and until such facts is disproved. In this very case, I find that the fact regarding bank slip memo, which is ext. 3 also not disproved and rebutted by the defence in this case.

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12. On the basis of above discussions, I find that the complainant has successfully proved and established the offence only U/s – 138 of NI Act against the above accused Sanjay Kumar @ Sanjay Saw, beyond all reasonable doubts.” (emphasis supplied)

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18. This Court finds that the learned trial court in para 9 of the judgement records that the legal notice was sent on 27.12.2012 which was within 30 days as per the requirement of section 138 of the Negotiable Instruments Act, 1881 and despite receiving the notice, the amount was not paid. The learned trial court does not record any finding with respect to the date as to when the notice was served upon the petitioner which is an important stage in the matter of filing of the complaint case. Rather, there is no evidence with regard to the date of service of notice upon the petitioner and it is not the case of the petitioner that the notice was sent on any wrong address.

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19. The appellate court was of the view that the learned trial court has rightly passed the order of conviction. With regard to the first objection of the appellant that there is no service report of the legal notice, the learned appellate court recorded that the legal notice as well as the postal receipt was exhibited as exhibit 4 and 2 respectively

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which revealed that the legal notice was sent on 27.12.2012. It has also been recorded that the complainant did not provide any proof of service of notice so the exact date of service was not ascertainable but as per General Clauses Act, the notice is deemed to be validly served within time if the same is properly addressed and stamped. The learned appellate court was of the view that the notice having been sent on 27.12.2012 should have been served on 02.01.2013 and the cause of action for filing the complaint case was ripe on 18.01.2013 when the case was filed. With this the learned appellate court held that the complainant was able to prove the case under section 138 of the Negotiable Instruments Act, 1881 and upheld the conviction of the petitioner.

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20. This Court is of the considered view that there is no basis for the appellate court to treat the legal notice sent through registered post on 27.12.2012 as served on 02.01.2013 and accordingly the finding of the learned appellate court that the cause of action to file the complaint was ripe on 18.01.2013 is perverse and calls for interference. As pointed out above, the learned trial court is completely silent on the point of date of service of legal notice upon the accused (petitioner). This Court is of the considered view that presumption regarding service of notice dispatched by registered post can at best be taken to be a date upon expiry of 30 days from the date of dispatch of notice and the timeline for filing the complaint case is to be calculated accordingly. Paragraph 21 of the judgment passed by this Court in Criminal Revision No.827 of 2012 (supra) has considered this aspect of the matter which is quoted as under:

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“21 . This Court finds that there is no material on record regarding service of legal notice dated 03.03.2008 dispatched by registry on 04.03.2008 upon the petitioner and it is not the case of the complainant that the legal notice was returned unserved or returned for any other reason. This court is also 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

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money after receipt of notice.

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22 . 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 Paragraphs30, 31, 36, 37 to 38 which reads as under:

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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 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.

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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)

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“(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;

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(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;

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(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;

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(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;

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(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.”

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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

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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.

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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.

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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 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.

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23 .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 legal notice on the accused.

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24 .This Court also finds that even if the best case of the Complainant is taken into consideration, then the date of dispatch of notice by the complainant in 04.03.2008 (through registered cover), the date of presumed/deemed service of legal notice upon the petitioner would by 03.04.2008 (30 days from dispatch of legal notice) and 15 days from the date of service of notice would expire only on or about 18.04.2008 and present complaint case has been filed on 10.04.2008. 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 complaint 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 10.04.2008 and

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accordingly, the complaint itself was premature and hence not maintainable.

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25 .Consequently, the condition precedent for filing the case under Section 138 of the Negotiable Instruments Act, 13 1881, having not been satisfied, the complaint itself was not maintainable on the day it was filed and accordingly, the petitioners could not have been 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. Accordingly, the present petition is hereby allowed. The impugned judgements and sentence passed by the learned courts below are hereby set aside.

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26 .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.”

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21. This Court is of the considered view that in absence of specific date regarding service of notice, the notice can be deemed to have been served only upon expiry of 30 days from the date of its issuance and thereafter 15 more days is given to the accused as per the provisions of Negotiable Instruments Act, 1881 to make payment of the amount and only thereafter the cause of action to file a complaint case arises. It is not the case of the opposite party no.2 that the legal notice was returned unserved or returned for any other reason. Upon evidence of the prosecution, the petitioner was in complete denial and except stating that the petitioner is innocent, no other explanation was furnished by the petitioner.

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22. In the present case, the complaint case has been filed prior to expiry of 30 days from the date of issuance of notice dated 27.12.2012 through registered cover but there is neither any service report nor the same was returned unserved. The 30 days to assume deemed service of notice expired only on 26.01.2013. This Court has gone through the evidence of the complainant before the learned trial court and finds that even in the evidence, the complainant has not mentioned anything regarding service of notice rather the complainant had only stated that on 27.12.2012, notice was sent granting 15 days’ time to make payment failing which legal action will be taken. In view of the aforesaid facts and circumstances, this Court is of the considered view that the complaint was pre-mature.

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23. In para 41 the judgment passed by the Hon’ble Supreme Court reported in (2014) 10 SCC 713 (supra) , the Hon'ble Supreme Court while holding that the complaint was premature also observed in the

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judgment itself that the remedy for the complainant is to file a fresh complaint satisfying the Court regarding sufficient cause of delay. 24. The present revision is allowed and the parties may proceed as per law.

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Saurav

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(Anubha Rawat Choudhary, J.)

Sanjay Kumar Alias Sanjay Sao Alias Sanjay Sao Kanhu v. the State of Jharkhand

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Sanjay Kumar Alias Sanjay Sao Alias Sanjay Sao Kanhu v. the State of Jharkhand

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