ORDER :

1. In wake of instant surge in COVID-19 cases and spread of its highly infectious Omicron variant, abundant caution is being maintained, while hearing the matters in Court, for the safety of all concerned.

2. This criminal leave to appeal has been preferred claiming the following reliefs :-

“It is, therefore, respectfully prayed that your Lordships may graciously be pleased to accept and allow this Criminal Special Leave to Appeal under Section 378(4) of Cr. P.C., and by treating this leave to appeal as appeal, the impugned order dated 27.10.2021 passed by learned trial court may kindly be set aside and the accused respondent may kindly be adequately punished for the criminal delinquency which he committed under the provision of N.I. Act, and or the matter be remanded to the trial court to proceed against the accused respondent and pass appropriate judgment according to law.”

3. The factual matrix of case in brief is that the appellant/complainant filed a complaint under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as ‘Act of 1881’) against respondent-accused on 22.02.2010 before the Court of Judicial Magistrate, Sumerpur, District Pali alleging inter-alia that the complainant (Firm-M/s.Trilokchand Praveen Kumar) does its business of general merchant and commission agent at New Krishi Upaj Mandi and Shri Dhanraj is the power of attorney holder of said Firm. The accused-respondent, who is a farmer, used to sell his agricultural produce to the complainant-Firm, and thus, there were business transactions between them.

4. The allegation is that on 30.03.2009, accused-respondent took a loan of Rs.2,16,000/- from the complainant-Firm on interest @ 2% per hundred per month, however, despite repeated requests, the amount was not re-paid; thereafter, cheque no.043363 of Rs.2,58,900/- drawn on Sumerpur Merchantile Urban Cooperative Bank Ltd., Sumerpur Branch was given to the complainant with an assurance that the same will be honoured on being presented. The said cheque on its presentation for encashment, was however, dishonoured by the Bank with the remark, “insufficient funds”.

5. Learned counsel for the appellant submits that the criminal proceeding in question has culminated into acquittal of the accused-respondent vide the impugned order passed by the trial court, while deriving strength from the statute law (Act of 1881), which provides that as per clause (c) of Section 138 of the Act of 1881, the provisions of that Section shall not be made applicable unless “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”; the learned court below found that such prescription of law has not been satisfied in the present case, as the complaint in question has been preferred on 12th day i.e. before expiry of the mandatory period of 15 days from the date of service of notice upon the drawer/accused.

6. Learned counsel for the appellant further submits that 15 days’ period prescribed under Section 138 of the Act of 1881 is not mandatory. Learned counsel also submits that Section 138 of the Act of 1881 cannot be construed to defeat the legislative intent behind enacting the Act of 1881, rather the intention of drawer has to be seen.

7. Learned counsel for the appellant further submits that the drawer had sufficient opportunity to satisfy the legally enforceable debt, even before filing of the complaints; but once he failed to discharge such lawful liability, then he has to suffer the proceedings under Section 138 of the Act of 1881.

8. Learned counsel for the appellant draws the attention of this Court towards the judgment rendered by Hon’ble Apex Court in the matter of Alavi Haji, C.C. Vs. Palapetty Muhammed and Ors. (Criminal Appeal No.767/2007) decided on 18.05.2007. Relevant portion which reads as follows:-

“17. It is also to be borne in mind that the requir