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SUPREME COURT OF INDIA
K.S.Radhakrishnan & A.K.Sikri, JJ.
Kamlesh Kumar —Appellant
versus
State of Bihar & Anr. —Respondents
Criminal Appeal No. 2083/2013
Decided on 11.12.2013
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 available to the appellant before the trial court, subject to the rebuttal of respondent No.2.
3. Mr. Mishra, learned senior counsel appearing for the appellant submitted that even on admitted facts the complaint was untenable as it was clearly time barred and not filed within the stipulated period prescribed in law and therefore the High Court could not have scuttled the issue raised by the appellant by merely relegating the appellant to the trial court when the issue could be decided on the admitted facts on records. He, further, submitted that the appellant had approached the High Court without loss of any time and if during the pendency of the petition filed by the appellant under Section 482, Cr.P.C., two witnesses had been examined in the meantime, that factor could not have weighed against the appellant.
4. In order to understand the controversy, we may give basic facts which are undisputed.
5. The complaint under Section 138 of the N.I. Act is filed by respondent No.2 on the basis of cheque bearing No.003285 drawn on Bank of India, Mahua Branch where the appellant holds Bank Account bearing No.23371. This cheque was for a sum of Rs.3,45,000/-. The complainant had presented this cheque on 25.10.2008 which was returned dishonoured by the Bank. The defence on merits set up by the appellant is that he is a doctor by profession who is having his private practice. He found that certain cheques, some signed and some unsigned, were missing from his clinic in December 2006 in respect to which he had even given information to the Sub-Divisional Officer, Mahua, on 30th December 2006. Cheque No. 003285 was also one of those stolen cheques. We have stated this defence of the appellant just for record and are not going into this explanation of the appellant or influenced by it. We only tend to examine as to whether on admitted events, complaint is not maintainable.
6. The cheque in question was presented on 25.10.2008. After it was dishonoured, complainant issued notice dated 27.10.2008 to the appellant. The appellant did not accede to the demand contained in the said notice. Even the complainant chose not to file any complaint under Section 138 of the N. I. Act at that time. Instead, he presented same very cheque again for encashment through his banker on 10.11.2008. It bounced this time as well because of insufficient funds. Another legal notice dated 17.12.2008 was sent to the appellant. As this legal notice also did not invoke any positive response from the appellant, this time the complainant filed the complaint dated 7.01.2009. The summary of the aforesaid events, accordingly, is as under:-
Date Events 25.10.2008 ; Cheque presented 27.10.2008 ; Legal Notice 10.11.2008 ; 2nd presentation17.12.2008; Legal Notice 07.01.2009 Complaint filed
7. On the basis of
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