Disposed

Shri. Ningappa S/O Laxmappa Arakeri v. Shri. Raju S/O Ashok Potadar

Karnataka HC9 Nov 2023CRL.A/100496/2021

Case brief

AI extract

What is this about?

High Court of Karnataka disposed of a criminal appeal filed by a deceased appellant. The court allowed the complainant to institute a fresh complaint within two months, conditional on seeking condonation of delay under Section 142(b) proviso.

What did the court decide?

Appellant at liberty to institute a fresh complaint and seek benefit of proviso to Section 142(b) by satisfying Trial Court of sufficient cause for delay.

Shri. Ningappa S/O Laxmappa Arakeri Vs Shri. Raju S/O… — Cheque Dishonour | Karnataka HC (2023)

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NC: 2023:KHC-D:13096 CRL.A No. 100496 of 2021

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 09^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

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CRIMINAL APPEAL NO.100496 OF 2021

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BETWEEN:

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NINGAPPA S/O LAXMAPPA ARAKERI,

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SINCE DECEASED R/BY HIS LR’S.

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1A. SHRINIVAS S/O NINGAPPA ARAKERI, AGE. 32 YEARS, OCC. BUSINESS, R/O. SHRI. BALAJI SUGARS, QUARTERS NO. 18, YARGAL VILLAGE-586212,

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TQ. MUDDEBIHAL, DIST. VIJAYAPUR.

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Digitally signed by VIJAYALAKSHMIM KANKUPPI VIJAYALAKSHMIM KANKUPPI Date: 2023.11.17 12:57:24 +0530

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1B. SMT. POOJA W/O VITTAL JEEVAPUR, R/O. SHRI. BALAJI SUGARS, QUARTERS NO. 18, YARGAL VILLAGE-586212, TQ. MUDDEBIHAL, DIST. VIJAYAPUR.

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… APPELLANTS

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(BY SRI. SHIVRAJ S. BALLOLI, ADVOCATE)

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AND:

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SHRI. RAJU S/O ASHOK POTADAR, AGE. 32 YEARS, OCC. GOLDSMITH-BUSINESS, R/O. SHASHTRI COLONY, POST. BEDIKIHAL, TQ. CHIKODI, DIST. BELAGAVI-591214.

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… RESPONDENT

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(BY SRI. RAMACHANDRA A. MALI, ADVOCATE)

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NC: 2023:KHC-D:13096 CRL.A No. 100496 of 2021

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THIS CRIMINAL APPEAL IS FILED U/SEC.378(4) OF CR.P.C., SEEKING TO SET ASIDE THE JUDGMENT DATED 02.11.2019 PASSED IN CRIMINAL CASE NO.509/2015 ON THE FILE OF PRINCIPAL CIVIL JUDGE AND JMFC, CHIKODI THEREBY ACQUITTING THE RESPONDENT AND CONSEQUENTLY CONVICT THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE U/S 138 OF THE N.I. ACT BY ALLOWING THE TOP NOTED APPEAL.

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THIS APPEAL IS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The appeal arises from the judgment of acquittal passed in C.C.No.509/2020 dated 02.11.2019 by the learned Prl. Civil Judge and JMFC, Chikkodi acquitting the respondent for the offence punishable under Section 138 of Negotiable Instruments Act (hereinafter referred as ‘N.I.Act’ for brevity).

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2. The facts lie on a narrow compass.

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On 14.11.2014, a notice was addressed by the appellant to the respondent alleging that appellantcomplainant had paid the amount from time to time to the respondent-accused and he has acknowledged the same in

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the form of receipt by executing on a stamp paper agreeing to pay part amount of Rs.10,35,000/- dated

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3 - NC: 2023:KHC-D:13096 CRL.A No. 100496 of 2021

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07.08.2014 and respondent issued a cheque bearing No.000003 for Rs.10,35,000/- dated 30.09.2014 drawn on HDFC Bank, Chikkodi towards repayment. Notice alleged that the cheque was returned by the Bank to the appellant due to ‘funds insufficient’ in the account of respondent. The notice dated 14.11.2014 has been sent by registered post and returned to the appellant on 27.11.2014 with endorsement ‘not known, returned to sender’. The appellant instituted a complaint against the respondent under Section 138 of N.I.Act on 29.11.2014. The learned Magistrate took cognizance of the offence and registered a criminal case against the respondent for the offence under Section 138 of N.I.Act. After recording the evidence of both complainant’s and accused side, learned Magistrate by judgment dated 02.11.2019 passed in C.C.No.509/2015 acquitted the respondent. The judgment of acquittal has been questioned in this appeal. The said judgment of acquittal has been passed on the main ground that the complaint has been filed within 15 days of deemed service of notice to the respondent. The Trial

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Court held that notice dated 14.11.2014 deemed to have been served on the respondent on 26.11.2014. The complaint has been filed on 29.11.2014. The Trial Court held that the complainant would have waited for a period of 15 days from the date of deemed service of notice on 27.11.2014 and thereafter, after completion of 15 days, he ought to have been filed complaint within 30 days as per Section 142(1)(b) of the N.I.Act.

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The issue which is raised in this appeal is no longer res-integra and is covered by three-Judge bench decision of Hon’ble Apex Court in Yogendra Pratap Singh Vs Savitri Pandey and Another¹ . The two issues

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were formulated for decision which were:

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“1.1. (i) Can cognizance of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 be taken on the basis of a complaint filed before the expiry of the period of 15 days stipulated in the notice required to be served upon the drawer of the cheque in terms of Section 138 (c) of the Act aforementioned? And,

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1 (2014) 10 SCC 713

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NC: 2023:KHC-D:13096 CRL.A No. 100496 of 2021

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1.2. (ii) If answer to question No.1 is in the negative, can the complainant be permitted to present the complaint again notwithstanding the fact that the period of one month stipulated under Section 142 (b) for the filing of such a complaint has expired?”

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The first issue was resolved by paragraph 35 of

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the judgment, which is extracted below:

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“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. 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

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NC: 2023:KHC-D:13096 CRL.A No. 100496 of 2021

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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.”

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In the present case, while notice was deemed to have been served on the respondent-accused on 27.11.2014, the complaint was filed before the period of 15 days was completed. The complaint could have been filed only after 11.12.2014, but was filed on 29.11.2014. In view of legal bar which is created by Section 142 of the N.I.Act has explained in Yogendra Pratap Singh ’s case (supra) , taking of cognizance by the Court was contrary to the law and the complaint was not maintainable before expiry of the period of 15 days from the date of its receipt by the respondent-accused.

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NC: 2023:KHC-D:13096 CRL.A No. 100496 of 2021

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The second issue which was raised in

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Yogendra Pratap Singh ’s case (supra) , has been dealt with in the following terms:

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“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.”

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I am of the view that appellant would be

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entitled to the benefit of the determination on the second

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issue, as extracted above.

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The Hon’ble Apex Court in the case of Gajanand Burange Vs Laxmi Chand Goyal² ,

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considering the similar issue and following the Yogendra Pratap Singh ’s case (supra) , has given liberty to the complainant to institute a fresh complaint with liberty to seek benefit of proviso of Section 142(b) of the N.I.Act by satisfying Trial Court of sufficient cause for the delay in instituting the complaint. In view of the above, the following:

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ORDER

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The Criminal Appeal is disposed of.

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The appellant would be at liberty to institute a fresh complaint and since the earlier complaint could not be presented within the time prescribed by Section 142(b) of N.I.Act, the appellant would be at liberty to seek the benefit of the proviso by satisfying the Trial Court of sufficient cause for the delay in instituting the complaint.

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2 2022 LiveLaw (SC)682.

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In the event that the second complaint is filed within a

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period of two months from the date of this order, the Trial Court is requested to dispose of the complaint within a period of six months.

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Since, appellant-complainant died during the

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pendency of this appeal who is now represented by his son Shrinivas S/o Ningappa Arakeri, the son of the appellantcomplainant is at liberty to institute a fresh complaint as noted above.

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Sd/JUDGE

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AM CT:BCK List No.: 1 Sl No.: 12

Shri. Ningappa S/O Laxmappa Arakeri v. Shri. Raju S/O Ashok Potadar

Case brief

What is this about?

What did the court decide?

Shri. Ningappa S/O Laxmappa Arakeri v. Shri. Raju S/O Ashok Potadar

Case brief

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