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K.S.RADHAKRISHNAN, A.K.SIKRI
Kamlesh Kumar – Appellant
Versus
State of Bihar – Respondent
Key Points: - A criminal complaint under Section 138 of the Negotiable Instruments Act is not maintainable if the legal notice is not issued within 30 days of receiving information from the bank about the cheque being returned unpaid, even if the cheque was presented a second time [5000258860009][5000258860011]. - The period of limitation for issuing a legal notice is to be counted from the date of receipt of information by the drawer from the bank regarding the return of the cheque as unpaid, specifically after the second presentation of the cheque [5000258860009][5000258860011]. - The three conditions precedent for an offence under Section 138 of the Negotiable Instruments Act are: cheque presentation within validity, demand for payment via notice within 30 days of dishonor information, and failure to pay within 15 days of notice receipt (!) (!) (!) [5000258860010]. - The complainant's averment in the complaint that the cheque bounced on 10.11.2008 due to insufficient funds establishes that the complainant received information about the dishonor on that date (!) (!) . - Non-issuance of a legal notice within the prescribed 30-day limitation period after the second dishonor renders the complaint not maintainable [5000258860009] (!) . - A petition filed under Section 482 of the Cr.P.C. can be allowed to quash a complaint if it is found to be not maintainable due to non-compliance with the statutory requirements [5000258860001] (!) . - The High Court should have considered the maintainability of the complaint on admitted facts rather than relegating the appellant to the trial court, especially when the issue could be decided on record [5000258860003]. - The right to present the same cheque again for encashment is available to the complainant under the Negotiable Instruments Act [5000258860008]. - The cause of action for filing a complaint under Section 138 arises only after the drawer fails to make payment within 15 days of receiving the legal notice (!) [5000258860010]. - The complaint was dismissed as it was filed without satisfying all three conditions laid down in Section 138 of the N.I. Act (!) .
JUDGMENT
A.K. Sikri, J.— Leave granted.
2. The appellant herein is facing trial in the complaint filed by respondent No.2 under Section 138 of the Negotiable Instruments Act (N.I. Act for short). According to the appellant, criminal complaint is not maintainable and no such proceedings could be launched against him. He, therefore, approached the High Court of Judicature at Patna in the form of a petition under Section 482 of the Cr.P.C. for quashing of the order dated 28.10.2009 whereby the Court of Magistrate had taken cognizance of the complaint filed by the respondent No.2 issued summons to the appellant. This petition, however, has been dismissed by the High Court vide impugned judgment dated 1.11.2012. The solitary reason given by the High Court while dismissing the petition is that trial has already commenced and two witnesses have already been examined and discharged. Hence, at this stage it would not be proper to interfere with the trial. Various contentions which were raised by the appellant questioning the very maintainability of the complaint under Section 138 of the N.I. Act are not gone into by the High Court with the observations that those contentions would be availa
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