w w w . L a w y e r S e r v i c e s . i n



Vijay Kumar Mishra v/s State of U.P. & Another


Company & Directors' Information:- VIJAY INDIA PRIVATE LIMITED [Active] CIN = U25199DL1998PTC096860

Company & Directors' Information:- VIJAY J AND K PRIVATE LIMITED [Strike Off] CIN = U52100GJ1974PTC002504

Company & Directors' Information:- R K MISHRA & COMPANY PVT LTD [Strike Off] CIN = U51109WB1990PTC049582

Company & Directors' Information:- R B MISHRA & CO PRIVATE LIMITED [Strike Off] CIN = U45200BR1981PTC001523

Company & Directors' Information:- D VIJAY AND COMPANY LIMITED [Dissolved] CIN = U99999MH1933PTC002056

Company & Directors' Information:- MISHRA COMPANY PRIVATE LIMITED [Dissolved] CIN = U99999MH1958PLC011174

    Application U/s. 482 No. 12953 of 2015

    Decided On, 06 February 2020

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MRS. JUSTICE MANJU RANI CHAUHAN

    For the Appearing Parties: Ronak Chaturvedi, Anand Priya Singh, Ashok Kumar Mishra, Nawal Kishore Deo, Advocates.



Judgment Text


Heard Sri Ronak Chaturvedi, learned counsel for the applicant, Mr. Anand Priya Singh, learned counsel for opposite party no.2 and Mr. Prashant Kumar, learned A.G.A. for the State assisted by Mr. P.K. Sahi, State Law Officer.

2. Learned counsel for the applicant, learned counsel for opposite party no.2 and the learned A.G.A. agree that the present application may be disposed of at this stage without calling for further affidavits in view of the order proposed to be passed today.

3. By means of this 482 Cr.P.C. application, the applicant has questioned order dated 16th September, 2014 summoning the applicant, order dated 21st March, 2015 issuing non-bailable warrant against him as well as the entire proceedings of the Complaint Case No. 1546 of 2014 (Om Construction Vs. M/s. Komal Construction), under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the "N.I. Act"), Police Station-Obra, District-Sonbhadra, pending in the Court of .

4. The facts, as borne out from the complaint made by opposite party no.2 against the applicant on 13th August, 2014 under Section 138 N.I. Act in the Court of Additional Chief Judicial Magistrate, Sonebhadra, are as follows:

The company of applicant, in the name and style of "M/s. Komal Construction, under various work orders and tenders of Railaway and other departmnts, extensively undertakes various types of constructions such as pool construction, brick works etc. on huge basis and all the works and other arrangements are done by the applicant. Since the company got two work orders from M/s. Kalendi Raiwaly Construction (Engineering Ltd.) and for completion of the said work on time and on speed, which requires a lot of labor, resources, machines, etc. to speed up the work to complete on an adjusted basis. To fulfill all those works, the applicant needed to assign work to another person or firm and pay their expenses according to labor under which the applicant made a proposal to opposite party no. 2. to do the above work speedily and also assured that the applicant has more big tasks and his client talked him to complete the said work quickly and in lieu of this, the applicant requested opposite party no.2 for arranging machine, labor, capital and other expenses and also assured him to give work order of his company. Accepting the proposal, the applicant, opposite party no.2 agreed to work with him. Opposite party no.2 requested the applicant that because there are two marriages in his house, he would arrange the machine, money and everything but he would reach on the spot rarely. Being busy in the said marriages, opposite party no.2 could hardly reach the spot but he had arranged machine, money and everything whichever was required as per his assurance. In that way opposite party no.2 spent lot of money and labor on trusting the applicant and the opposite party no.2 also got a written contract from the applicant and he had worked under those contracts. In this way, opposite party no.2 started working with the applicant under contracts given by the applicant and gave his machine, labor and money. After being free from marriages, when he came to the site of applicant, he came to know that the applicant had taken money and labor from other people like him and those people were very angry and they were threatening the applicant to return their money. When opposite party no.2 asked the applicant as to why he has not given their money, he told opposite party no.2 that in case he is interested in working with him, he may do the same, otherwise get away with his money. When opposite party no.2 asked the applicant to refund the expenditure incurred in aforesaid works taken by him, he started bothering him by promising to refund the same by tomorrow or day-after tomorrow. In spite of that, the applicant continued to lure him by showing him income tax return worth of 5-7 crores and a turnover of 50-60 crores. Ultimately after enormous pressure exerted by opposite party no.2, the applicant told him to make a statement of account of money whichever has been spend by him and at the end of February 2014, he accounted for about Rs. 15 crores on the applicant, which he has also admitted in the presence of other sharers of his company and some others. To refund the same, out of total amount of Rs. 15 crores, for paying Rs. 50 lacs, the applicant has given some cheques to opposite party no.2 and he has also assured the opposite party no.2 to refund all the money on different dates in future. When Cheque no. 002107 dated 15th June, 2014 for a sum of Rs. 12,00,000/-, Cheque no. 002108 dated 15th June, 2014 for a sum of Rs. 12,00,000/- and Cheque no. 002109 dated 15th June, 2014 for a sum of Rs. 12,00,000/- (i.e. total Rs. 36,00,000/-), which were given by the applicant, has been presented on 3rd July, 2014 by opposite party no.2 for encashment in Allahabad Bank, Branch-Obera, where account of opposite party no. 2 bearing Account No. 5018365077 is maintained, on the same day the same has been returned as dishonoured with a return memo showing "insufficient balance".

5. The said complaint supported by an affidavit has been registered as Complaint Case No. 1546 of 2014 (Om Construction Vs. M/s. Komal Construction), under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the "N.I. Act"), Police Station-Obra, District-Sonbhadra. After recording statement of the complainant under Section 200 Cr.P.C, the court below has passed an order dated 16th September, 2014 and when the applicant could not appear before the court below, the court below has passed an order dated 21st March, 2015 issuing non-bailable warrant against the applicant. It is against these two orders that the present application under Section 482 Cr.P.C. has been filed.

6. On the matter being taken up, a Coordinate Bench of this Court passed following order:

"Heard learned counsel for the applicant and leaned AGA.

Learned counsel for the applicant has submitted that the complaint as well as the affidavits filed in support of the complaint is completely silent about any notice or its service upon the applicant as required under Section 138 of Negotiable Instruments Act, 1881.

Submissions made by learned counsel for the applicants, prima facie, appear to have substance and a prima facie case for grant of interim relief is made out.

Issue notice to opposite party no. 2 returnable within four weeks. He may file counter affidavit within the same period after receipt of notice. Rejoinder affidavit, if any, may be filed within two weeks thereafter.

List this case after expiry of aforesaid period. Till the next date of listing no coercive steps shall be taken against the applicant only in Complaint Case No. 1546 of 2014, under Section 138 of N. I. Act, P.S. Obra, District Sonbhadra."

7. Learned counsel for the applicant submits that before summoning the applicant, the court below has not recorded statements of witnesses of opposite party no.2 except him, which is per se illegal. The applicant is the Director/Partner of M/s. Komal Construction. The said company is engaged in construction work. It is no doubt true that the applicant and the complainant were carrying on business transaction but the applicant has already re-paid some amount to the complainant. It is further submitted that in the complaint, the complainant/opposite party no.2 has only given the details of the cheques and the date of its dishonour. In the complaint, it is nowhere alleged that any legal notice was given by the complainant/opposite party no.2 through his advocate to the applicant nor anything has been said about the receipt of the same to the applicant, which are necessary and essential ingredients as per Section 138 N.I. Act. It is further submitted by the learned counsel for the applicant that Section 138 N.I. Act very clearly provides that the offence would be made out, if 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 legal notice in writing, to the drawer of the cheque within 15 days of the receipt of the information received by him by the Bank qua the return of the cheque as unpaid. In the complaint, opposite party no.2. has only mentioned the date on which he has received information from the Bank and it has nowhere been mentioned as how he made a demand for the payment of the said amount of money. In absence of necessary and essential ingredients of the alleged offence, the complaint itself becomes void and the proceedings initiated on such a complaint is not at all maintainable. As such the same are liable to be quashed by this Court. Learned counsel for the applicant further submits that even the statement of opposite party no.2 which has been given on an affidavit, does not depict the allegations of sending notice or making a demand from the applicant. The statement like the complaint is absolutely silent about the factum of sending legal notice and failure on the part of the applicant to repay the amount, which is necessary ingredient for constituting an offence under Section 138 N.I. Act. The court below only on the basis of such complaint and statement of the complainant has committed error in passing the summoning order against applicant, which is also illegal. It is further submitted that in the impugned order passed by the court below dated 16th September, 2014, it has been mentioned that cheques were dishonoured on 3rd July, 2014 and the legal notice, which was sent on 14th July, 2014. However, the said legal notice depicts that the said notice is a registered legal notice sent by the opposite party no.-2 through his advocate, namely, Ravindra Nath Pandey on 14th July, 2014. Even otherwise, the purported notice is vague and does not clearly depict the exact amount, which the applicant had to pay to the complainant. Neither in the complaint nor in the statement of the complainant recorded under Section 200 Cr.P.C., it has been mentioned as to on what date, the said legal notice has been received by the applicant. It is next submitted that even assuming without admitting that any such notice has been sent on 14th July, 2014 by registered post then, it can be inferred that the same has been delivered as per the period mentioned under Section 27 of the General Clauses Act, which mentions a period of 30 days. It is thus, submitted that if 30 days are to be calculated from 14th July, 2014, then it can be said that the said notice was delivered on 13th August, 2014, which further gives 15 days time to the applicant to repay the amount. If this 15 days period is added to 13th August, 2014, then it would mean that the complaint could not have been filed before 28th August, 2014 but in the present case the opposite party no.2 has filed the complaint on 13th August, 2014, which makes the complaint premature because no complaint can be maintained against the drawer of a cheque before the expiry of 15 days from the date of receipt of the notice under Proviso (c) to Section 138 N.I. Act, because the drawer/accused cannot be said to have committed any offence until then nor there is any accrual of cause of action for filing complaint under Section 138 N.I. Act. Any complaint filed before the expiry of the said 15 days is non est. Hence no cognizance of an offence can be taken on the basis of such non est complaint. In support of his aforesaid submissions, learned counsel for the applicant has relied upon following judgments of the Apex Court:

i. Jugesh Sehgal Vs. Shamsher Singh Gogi, (2009) 14 SCC 683;

ii. Yogendra Pratap Singh Vs. Savitri Pandey & Another, (2014) 14 SCC 812;

iii. N. Harihara Krishnan Vs. J. Thomas, (2018) 13 SCC 663.

8. Learned counsel for the applicants, therefore, submitted that the present criminal proceedings initiated against the applicant are an abuse of the process of the Court and law. On the cumulative strength of the aforesaid submissions, it is submitted by learned counsel for the applicants that the proceedings of the above mentioned complaint case are liable to be quashed by this Court.

9. Per contra, Mr. Prashant Kumar, learned A.G.A. for the State and Mr. Anand Priya Singh, learned counsel for opposite party no.2 have opposed the submissions made by the learned counsel for the applicant by contending that there is no illegality or infirmity in the order of summoning of the applicant passed by the concerned Magistrate. Learned counsel for the State and the learned counsel for opposite party no.2, therefore, submits that the present application is liable to be dismissed.

10. I have considered the submissions made by the learned counsel for the applicants and have gone through the records of the present application.

11. Before expressing any opinion on the merits of the case set up by both the parties, it would be worthwhile to reproduce Sections 138, 139 & 142 of the Negotiable Instrument Act, which are quoted herein-below:

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 19 [a term which may be extended to two years], 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, 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.]

139. Presumption in favour of holder.--It shall be presumed, unless the contrary is proved, that the holder of a 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.

"142 Cognizance of offences. --Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)--

(a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;

(b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138: [Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period.]

(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138."

12. From the above, it is manifestly clear that a dishonour would constitute an offence only if the cheque is returned by the bank 'unpaid' either because the amount of money standing to the credit of the drawer's account is insufficient to honour the cheque or that the amount exceeds the amount arranged to be paid from that account by an agreement with that bank. Now, for an offence under Section 138 NI Act, it is essential that the cheque must have been issued in discharge of legal debt or liability by accused on an account maintained by him with a bank and on presentation of such cheque for encashment within its period of validity, the cheque must have been returned unpaid. The payee of the cheque must have issued legal notice of demand within 30 days from the receipt of the information by him from the bank regarding such dishonor and where the drawer of the cheque fails to make the payment within 15 days of the receipt of the aforesaid legal demand notice, cause of action under Section 138 NI Act arises.13. From the Chapter XVII comprising Sections 138 to 142 of the Negotiable Instruments Act, which was introduced in statute by Act 66 of 1988, it is also apparently clear that the object underlying the provision contained in the said Chapter was aimed at inculcating faith in the efficacy of banking operations and giving credibility to negotiable instruments in business and day to day transactions by making dishonour of such instruments an offence. A negotiable instrument whether the same is in the form of a promissory note or a cheque is by its very nature a solemn document that carries with it not only a representation to the holder in due course of any such instrument but also a promise that the same shall be honoured for payment. To that end Section 139 of the Act raises a statutory presumption that the cheque is issued in discharge of a lawfully recoverable debt or other liability. This presumption is no doubt rebuttable at trial but there is no gain saying that the same favours the complainant and shifts the burden to the drawer of the instrument (in case the same is dishonoured) to prove that the instrument was without any lawful consideration. It is also noteworthy that Section 138 while making dishonour of a cheque an offence punishable with imprisonment and fine also provides for safeguards to protect drawers of such instruments where dishonour may take place for reasons other than those arising out of dishonest intentions. It envisages service of a notice upon the drawer of the instrument calling upon him to make the payment covered by the cheque and permits prosecution only after the expiry of the statutory period and upon failure of the drawer to make the payment within the said period.

14. Under Section 138 of the Act, where a cheque issued by the drawer in the discharge of any debt or any other liability is returned by the bank unpaid, because the amount standing to the credit of that account is insufficient to honour the cheque, the said person is deemed to have committed an offence. This is subject to proviso to Section 138 which provides that the cheque should have been presented to the bank within the period of six months from the date of which it is drawn or within the period of its validity, whichever is earlier. The payee must also make a demand for the payment of the said amount 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 unpaid. If despite this demand, the drawer fails to make the payment within fifteen days of the receipt of the notice, a cause of action arises for prosecuting him for the offence punishable under Section 138 of the Act. Section 142 provides that the court shall take cognizance of an offence punishable under Section 138 of the Act upon receipt of a complaint in writing made by the payee or, as the case may be, the holder in due course of the cheque. Such complaint must be made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138. However, discretion is given to the court to take cognizance of the complaint even after the prescribed period, if the complainant satisfies the court that he had sufficient cause for not making the complaint within such period.

15. Persons who purported to discharge their liability by issuing cheques without really intending to do so, which was demonstrated by the fact that there was no sufficient balance in the account to discharge the liability. Apart from civil liability, a criminal liability was imposed on such unscrupulous drawers of cheques. The prosecution, however, was made subject to certain conditions. With a view to avoid unnecessary prosecution of an honest drawer of a cheque, or to give an opportunity to the drawer to make amendments, the proviso to Section 138 provides that after dis- honour of the cheque, the payee or the holder of the cheque in due course must give a written notice to the drawer to make good the payment. The drawer is given 15 days time from date of receipt of notice to make the payment, and only if he fails to make the payment he may be prosecuted. The object which the proviso seeks to achieve is quite obvious. It may be that on account of mistake of the bank, a cheque may be returned despite the fact that there is sufficient balance in the account from which the amount is to be paid. In such a case if the drawer of the cheque is prosecuted without notice, it would result in great in-justice and hardship to an honest drawer. One can also conceive of cases where a well intentioned drawer may have inadvertently missed to make necessary arrangements for reasons beyond his control, even though he genuinely intended to honour the cheque drawn by him. The law treats such lapses induced by inadvertence or negligence to be pardonable, provided the drawer after notice makes amendments and pays the amount within the prescribed period. It is for this reason that clause (c) of proviso to Section 138 provides that the section shall not apply unless the drawer of the cheque fails to make the payment within 15 days of the receipt of the said notice. To repeat, the proviso is meant to protect honest drawers whose cheques may have been dishonoured for the fault of others, or who may have genuinely wanted to fulfill their promise but on account of inadvertence or negligence failed to make necessary arrangements for the payment of the cheque. The proviso is not meant to protect unscrupulous drawers who never intended to honour the cheques issued by them, it being a part of their modus operandi to cheat unsuspecting persons.

16. If a notice is issued and served upon the drawer of the cheque, no controversy arises. Similarly if the notice is refused by the addressee, it may be presumed to have been served. This is also not disputed. This leaves us with the third situation where the notice could not be served on the addressee for one or the other reason, such as his non availability at the time of delivery, or premises remaining locked on account of his having gone elsewhere etc. If in each such case the law is understood to mean that there has been no service of notice, it would completely defeat the very purpose of the Act. It would then be very easy for an unscrupulous and dishonest drawer of a cheque to make himself scarce for sometime after issuing the cheque so that the requisite statutory notice can never be served upon him and consequently he can never be prosecuted. There is good authority to support the proposition that once the complainant, the payee of the cheque, issues notice to the drawer of the cheque, the cause of action to file a complaint arises on the expiry of the period prescribed for payment by the drawer of the cheque. If he does not file a complaint within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138 of the Act, his complaint gets barred by time. Thus, a person who can dodge the postman for about a month or two, or a person who can get a fake endorsement made regarding his non availability can successfully avoid his prosecution because the payee is bound to issue notice to him within a period of 30 days from the date of receipt of information from the bank regarding the return of the cheque as unpaid. He is, therefore, bound to issue the legal notice which may be returned with an endorsement that the addressee is not available on the given address.

17. 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 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. 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 the answer to question (i) is in the negative, this Court observes 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 the answer to question (i). As this Court has 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.

18. In Jugesh Sehgal (Supra), which has been relied upon by the learned counsel for the applicant, the Apex Court in paragraph-21 has observed as follows:

"21. Bearing in mind the above legal position, we are of the opinion that it was a fit case where the High Court, in exercise of its (2008) 3 SCC 574 jurisdiction under Section 482 of the Code, should have quashed the complaint under Section 138 of the Act."

19. In Yogendra Pratap Singh (Supra), which has also been relied upon by the learned counsel for the applicant, in paragraph nos. 36 to 41, the Apex Court has observed as follows:

"36. A complaint filed before 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. 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.19 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.

37. We, therefore, do not approve the view taken by this Court in Narsingh Das Tapadia1 and so also the judgments of various High Courts following Narsingh Das Tapadia1 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 over-ruled.

38. Rather, the view taken by this Court in Sarav Investment & Financial Consultancy2 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.

39. Our answer to question (i) is, therefore, in the negative.

40. The other question is that if the answer to question (i) 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.

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 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. 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."

20. In N. Harihara Krishnan (Supra), which has also been relied upon by the learned counsel for the applicant, the Apex Court in paragraph nos. 26 and 27 has observed as follows:

"26. The scheme of the prosecution in punishing under Section 138 of THE ACT is different from the scheme of the CrPC. Section 138 creates an offence and prescribes punishment. No procedure for the investigation of the offence is contemplated. The prosecution is initiated on the basis of a written complaint made by the payee of a cheque. Obviously such complaints must contain the factual allegations constituting each of the ingredients of the offence under Section 138. Those ingredients are: (1) that a person drew a cheque on an account maintained by him with the banker; (2) that such a cheque when presented to the bank is returned by the bank unpaid; (3) that such a cheque was presented to the bank within a period of six months from the date it was drawn or within the period of its validity whichever is earlier; (4) that the payee demanded in writing from the drawer of the cheque the payment of the amount of money due under the cheque to payee; and (5) such a notice of payment is made within a period of 30 days from the date of the receipt of the information by the payee from the bank regarding the return of the cheque as unpaid. It is obvious from the scheme of Section 138 that each one of the ingredients flows from a document which evidences the existence of such an ingredient. The only other ingredient which is required to be proved to establish the commission of an offence under Section 138 is that inspite of the demand notice referred to above, the drawer of the cheque failed to make the payment within a period of 15 days from the date of the receipt of the demand. A fact which the complainant can only assert but not prove, the burden would essentially be on the drawer of the cheque to prove that he had in fact made the payment pursuant to the demand.

27. By the nature of the offence under Section 138 of the Act, the first ingredient constituting the offence is the fact that a person drew a cheque. The identity of the drawer of the cheque is necessarily required to be known to the complainant (payee) and needs investigation and would not normally be in dispute unless the person who is alleged to have drawn a cheque disputes that very fact. The other facts required to be proved for securing the punishment of the person who drew a cheque that eventually got dishonoured is that the payee of the cheque did in fact comply with each one of the steps contemplated under Section 138 of THE ACT before initiating prosecution. Because it is already held by this Court that failure to comply with any one of the steps contemplated under Section 138 would not provide " cause of action for prosecution". Therefore, in the context of a prosecution under Section 138, the concept of taking cognizance of the offence but not the offender is not appropriate. Unless the complaint contains all the necessary factual allegations constituting each of the ingredients of the offence under Section 138, the Court cannot take cognizance of the offence. Disclosure of the name of the person drawing the cheque is one of the factual allegations which a complaint is required to contain. Otherwise in the absence of any authority of law to investigate the offence under Section 138, there would be no person against whom a Court can proceed. There cannot be a prosecution without an accused. The offence under Section 138 is person specific. Therefore, the Parliament declared under Section 142 that the provisions dealing with taking cognizance contained in the Cr.P.C. should give way to the procedure prescribed under Section 142. Hence the opening of non-obstante clause under Section 142. It must also be remembered that Section 142 does not either contemplate a report to the police or authorise the Court taking cognizance to direct the police to investigate into the complaint."

21. In D. Vinod Shivappa Versus Nanda Belliappa, (2006) 6 SCC 456, specially in paragraph nos. 15 to 19, the Apex Court has observed as follows:

"15. We cannot also lose sight of the fact that the drawer may by dubious means manage to get an incorrect endorsement made on the envelope that the premises has been found locked or that the addressee was not available at the time when postman went for delivery of the letter. It may be that the address is correct and even the addressee is available but a wrong endorsement is manipulated by the addressee. In such a case, if the facts are proved, it may amount to refusal of the notice. If the complainant is able to prove that the drawer of the cheque knew about the notice and deliberately evaded service and got a false endorsement made only to defeat the process of law, the Court shall presume service of notice. This, however, is a matter of evidence and proof. Thus even in a case where the notice is returned with the endorsement that the premises has always been found locked or the addressee was not available at the time of postal delivery, it will be open to the complainant to prove at the trial by evidence that the endorsement is not correct and that the addressee, namely the drawer of the cheque, with knowledge of the notice had deliberately avoided to receive notice. Therefore, it would be pre- mature at the stage of issuance of process, to move the High Court for quashing of the proceeding under Section 482 of the Code of Criminal Procedure. The question as to whether the service of notice has been fraudulently refused by unscrupulous means is a question of fact to be decided on the basis of evidence. In such a case the High Court ought not to exercise its jurisdiction under Section 482 of the Code of Criminal Procedure.

17. In K. Bhaskaran vs. Sankaran Vaidhyan Balan and another, (1999) 7 SCC 510 the drawee had presented a cheque issued by the drawer but the same was dishonoured. A notice was sent by registered post but the same was returned with the endorsement that the addressee was found absent on 3rd , 4th and 5th February, 1993 and intimation was served on addressee's house on 6th February, 2003. Thereafter the postal article remained unclaimed till 15th February, 1993 and it was returned to the sender with a further endorsement "unclaimed". The complaint filed by the drawee was dismissed on the ground of territorial jurisdiction as also on the ground that since the notice had not been received by the drawer, there was no cause of action for filing the complaint. On appeal, the High Court reversed the order of acquittal. The appellant approached this Court by special leave. This Court held in favour of the respondent on the question of territorial jurisdiction. On the question of notice this Court considered the scheme of Section 138 of the Act by particular reference to clauses (b) and (c) of the proviso thereof. In view of the legislative scheme it was held, the failure on the part of the drawer to pay the amount should be within 15 days "of the receipt" of the said notice. It was clear that the "giving of notice" in the context was not the same as the receipt of notice. "Giving" was the process of which the "receipt" was the accomplishment. This Court then observed :

"If a strict interpretation is given that the drawer should have actually received the notice for the period of 15 days to start running no matter that the payee sent the notice on the correct address, a trickster cheque drawer would get the premium to avoid receiving the notice by different strategies and he could escape from the legal consequences of Section 138 of the Act. It must be borne in mind that Court should not adopt in interpretation which helps a dishonest evader and clips an honest payee as that would defeat the very legislative measure."

18. This Court noticed the position well settled in law that the notice refused to be accepted by the drawer can be presumed to have been served on him. In that case the notice was returned as "unclaimed" and not as refused. The Court posed the question "Will there be any significant difference between the two so far as the presumption of service is concerned?" Their Lordships refe

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rred to Section 27 of the General Clauses Act and observed that the principle incorporated therein could profitably be imported in a case where the sender had despatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee, unless he proves that it was not really served and that he was not responsible for such non-service. This Court dismissed the appeal preferred by the drawer holding that where the notice is returned by the addressee as unclaimed such date of return to the sender would be the commencing date in reckoning the period of 15 days contemplated in clause (c) to the proviso of Section 138 of the Act. This would be without prejudice to the right of the drawer of the cheque to show that he had no knowledge that the notice was brought to his address. Since the appellant did not attempt to discharge the burden to rebut the aforesaid presumption, the appeal was dismissed by this Court. The aforesaid decision is significant for two reasons. Firstly it was held that the principle incorporated in Section 27 of the General Clauses Act would apply in a case where the sender despatched the notice by post with the correct address written on it, but that would be without prejudice to the right of the drawer of the cheque to show that he had no knowledge that the notice was brought to his address. 19....................... "Section 27 of the General Clauses Act deals with the presumption of service of a letter sent by post. The despatcher of a notice has, therefore, a right to insist upon and claim the benefit of such a presumption. But as the presumption is rebuttable one, he has two options before him. One is to concede to the stand of the sendee that as a matter of fact he did not receive the notice, and the other is to contest the sendee's stand and take the risk for proving that he in fact received the notice. It is open to the despatcher to adopt either of the options. If he opts the former, he can afford to take appropriate steps for the effective service of notice upon the addressee." 22. From the records, it is not disputed that neither in the complaint nor in the statement of the complainant recorded under Section 200 Cr.P.C., is it mentioned as to on which dates, he has demanded for refund of his money from the applicant, on which date he had presented the alleged cheques in the bank for encashment. The complainant has also not disclosed the date on which he had sent the legal notice to the applicant through his advocate and the date of service of notice. The complainant has also disclosed the date i.e. 3rd July, 2014 on which the dishonoured cheques along with return memo showing "insufficient balance" amount in the account of the applicant, has been received. 23. From the aforesaid, it is not clear that one of main ingredient i.e. date of service of notice from which the date the cause of action arises i.e. date of bank return memo as per the provisions of Section 138 N.I. Act is completely missing in the present case. As per Section 138 read with Section 142 N.I. Act and the above discussions and law laid down by the Apex Court, the period of complaint being filed from the date of service of notice i.e. within one month is also not complied in the present case. 24. In the impugned summoning order also the concerned Magistrate has only recorded the date on which the alleged cheques were dishonoured i.e. 3rd July, 2014 and the date of legal notice i.e. 14th July, 2014, which was sent to the applicant but he has not recorded the date on which the legal notice has been served from which the date the cause of action would arise. 25. In view of the provisions of Sections 138 read with Section 142 N.I. Act as well as the law laid down by the Apex Court on this subject, the main ingredients are not complied with by the complainant while filing such immature complaint, which is liable to be quashed. 26. Accordingly, the entire proceedings of the Complaint Case No. 1546 of 2014 (Om Construction Vs. M/s. Komal Construction), under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the "N.I. Act"), Police Station-Obra, District-Sonbhadra, are quashed. However, it shall be open for the complainant/opposite party no.2 to file a fresh complaint against the applicant in accordance with law. 27. The present application is, accordingly, allowed. There shall be no order as to costs.
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