A complaint under Section 138 of the NI Act is non-maintainable if filed before the expiry of the 15-day grace period following service of notice. When sent by registered post without acknowledgment, notice is deemed served 30 days after dispatch.

JUDGMENT :

Rakesh Kainthla, Judge

The present revisions are directed against the judgment dated 07.01.2014 passed by the learned Sessions Judge, (Forests) Shimla, camp at Theog (learned Appellate Court) vide which the judgment of conviction and order of sentence dated 26.05.2011 passed by the learned Judicial Magistrate First Class, Theog, District Shimla (learned Trial Court) were partly upheld. Since both the revisions have arisen out of the common judgment, they are being taken up together for disposal. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

2. Briefly stated, the facts giving rise to the present revision are that the complainant filed a complaint before the learned Trial Court against the accused for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (NI Act). It was asserted that the accused had issued a cheque to the complainant on 20.04.2008 for a sum of Rs. 1,06,074/- to discharge his liability. The complainant presented the cheque at his bank, but it was dishonoured with the endorsement “insufficient funds”. The complainant issued a notice to the accused asking him to pay the money within 15 days from the date of the receipt of the notice. The notice was sent to the correct address, but no acknowledgement was received, and the notice is deemed to be served; hence, a complaint was filed before the learned Trial Court for taking action as per the law.

3. Learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, a notice of accusation was put to him for the commission of an offence punishable under Section 138 of the NI Act, to which he pleaded not guilty and claimed trial.

4. The complainant examined Kedar Sharma (CW1), Rajesh (CW2) and himself (CW3) to prove his complaint.

5. The accused in his statement recorded under Section 313 of the Code of Criminal Procedure (CrPC) admitted that he had issued a cheque of Rs. 1,06,074/- in favour of the complainant. He admitted that the cheque was dishonoured with an endorsement “insufficient funds” and that the complainant had issued a notice to him. He admitted that he had not paid the money within the period mentioned in the notice. He claimed that he had made the payment earlier and the complainant had misused the cheque given to him as a security. He did not produce any evidence in his defence.

6. Learned Trial Court held that the accused had not disputed the issuance of the cheque. Therefore, a presumption arose that the cheque was issued for consideration to discharge debt/liability. The accused did not produce any evidence to rebut the presumption. There was nothing in the cross-examination of the complainant to show that the accused had made the payment to him. The accused also admitted that the cheque was dishonoured with an endorsement “insufficient funds” and that the notice was issued by the complainant. He also admitted that he had not paid the money to the complainant after the receipt of the notice. All the ingredients of the commission of an offence punishable under Section 138 of the NI Act were duly satisfied. Hence, the learned Trial Court convicted the accused of the commission of an offence punishable under Section 138 of the NI Act and sentenced him to undergo simple imprisonment for 6 months, pay a fine of Rs. 1,000/- and, in default of payment of fine, to undergo simple imprisonment for 1 month. The learned Trial Court also directed the accused to pay Rs. 1,06,074/- as compensation to the complainant.

7. Being aggrieved by the judgment and order passed by the learned Trial Court, the accused filed an appeal which was decided by the learned Sessions Judge, (Forests) Shimla camp at Theog (learned Appellate Court). The learned Appellate Court concurred with the findings recorded by the learned Trial Court that the accused had admitted the issuance of the cheque. Therefore, a presumption arose th