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2019 Supreme(Jhk) 338
IN THE HIGH COURT OF JHARKHAND AT RANCHI
ANIL KUMAR CHOUDHARY, J.
Shyam Sundar Singh @ Shyam Sunder Singh, S/o Bharat Singh - Appellant
Versus
The State of Jharkhand - Respondents
Acq. App. (C) No. 48 of 2019
Decided on : 20-06-2019
Advocate Appeared:
For the Appellants :Mr. Mukesh Kr. Dubey, Advocate
For the State : Addl. P.P.
Headnote:
Code of Criminal Procedure - Section 378 - Negotiable Instrument Act - Section 138 - Judgment of acquittal - Demanded the money and consequent- Claim of compensation - Brief facts of case is that appellant-complainant gave a friendly loan accused-respondent and as within agreed period accused-respondent did not return said money appellant-complainant demanded money and consequent upon which accused-respondent issued a cheque which on being presented by appellant-complainant for encashment was dishonored for reason of insufficiency of fund in bank account of accused-respondent communicated vide cheque return memo appellant-complainant issued notice demanding payment of said amount to accused-respondent acknowledgment of said notice issued by appellant-complainant was never received by appellant-complainant and consequently complaint under Section 138 of Negotiable Instrument Act was filed in Court - Learned trial court relying upon judgment Supreme Court of India in case of Another reported Travel & Tours vs. State nother reported judgment of a coordinate bench of this court in case – HELD, Learned Addl. P.P. on other hand defended impugned judgment and submitted that it is a settled principle of law that in case acknowledgment of receipt of notice demanding payment of cheque amount is not received by payee presumption of receipt of notice would be on from the date of issue of notice and after waiting for statutory period enable the drawer of cheque to pay amount of cheque complaint at earliest can be filed at least after issue of notice and admittedly in this case complaint having being filed only after of issue of notice, the same has rightly been held to be premature hence it is submitted that there is no illegality in the impugned judgment passed by trial court - Therefore it is submitted that special leave ought not be granted to the appellant to present appeal - It is a settled principle of law that period of reckoning as required under Section 138 read with section 142 of N.I. Act in a case where complainant cannot bring on record any evidence as to when the notice of demand of cheque amount was received by the accused is to start from 30th day from the date of dispatch of demand-cum-legal notice hence complaint at earliest can be filed only after from date of dispatch of demand notice as has been held by Supreme Court of India in case of Another reported paragraph of which reads as under - Complaint petition admittedly was filed notice having been sent if presumption of service of notice within a reasonable time is raised, it should be deemed to have been served at best within a period of thirty days from date of issuance thereof accused was required to make payment in terms of said notice within fifteen days thereafter or complaint petition therefore should have been filed -After going through evidence in record this Court is of considered view that the learned trial court has acted in consonance with settled principle of law and as rightly submitted by learned Addl. P.P. complaint ought to have been presented at least from date of issue of notice of demand and as admittedly there is no document in record to suggest date on which notice has been received by complainant therefore learned trial court has rightly held that complaint is premature hence, this Court is of the considered view that this is not a fit case where special leave to present this appeal under section 378 be granted – Appeal dismissed
I.A. No.3709 of 2019
1. Heard learned counsel for the complainant-appellant and learned Addl. P.P. for the State.
2. This interlocutory application has been filed with a prayer for grant of special leave under Section 378 (4) of the Code of Criminal Procedure for presenting this appeal against the judgment of acquittal passed by the Judicial Magistrate 1st Class, Jamshedpur in C/1 Case No.991 of 2017 corresponding to T.R. No.27 of 2019.
3. The brief facts of the case is that the appellant-complainant gave a friendly loan of Rs.35,000/- to the accused-respondent no.2 and as within the agreed period, the accused-respondent no.2 did not return the said money, the appellant-complainant demanded the money and consequent upon which the accused-respondent no.2 issued a cheque dated 22.12.2016 for Rs.35,000/- which on being presented by the appellant-complainant for encashment was dishonoured for the reason of insufficiency of fund in the bank account of the accused-respondent no.2 communicated vide the cheque return memo dated 08.03.2017. The appellant-complainant on 18.03.2017 issued notice demanding payment of the said amount to the accused-respondent no.2. The acknowledgment of the said notice issued by the appellant-complainant was never received by the appellant-complainant and consequently on 13.04.2017 the complaint under Section 138 of Negotiable Instrument Act was filed in the Court.
4. Learned trial court relying upon the judgment of Hon’ble Supreme Court of India in the case of Subodh S. Salaskar vs. Jayprakash M. Shah & Another reported in (2008) 13 SCC 689, M/s Shakti Travel & Tours vs. State of Bihar & Another reported in 2000 (7) Supreme 90 and the judgment of a coordinate bench of this court in the case of Raj Kumar Prasad vs. The State of Jharkhand & Anr. reported in 2016 3 East Cr.C. 409 (Jharkhand) came to a conclusion that the complaint has been filed prematurely, without waiting for the statutory period of 15 days after receipt of the notice, hence, the complaint cannot be deemed to be a complaint in the eye of law and accordingly, the learned trial court acquitted the accused-respondent no.2.
5. Learned counsel for the appellant-complainant submits that the learned trial court mechanically acquitted the accused-respondent no.2 ignoring the fact and law. It is submitted that the impugned judgment passed by the trial court is a perverse one hence special leave be granted to the complainant-appellant to present this appeal.
6. The learned Addl. P.P. on the other hand defended the impugned judgment and submitted that it is a settled principle of law that in case the acknowledgment of receipt of notice demanding payment of cheque amount is not received by the payee, the presumption of receipt of notice would be on the 30th day from the date of issue of notice and after waiting for statutory period of 15 days to enable the drawer of the cheque to pay the amount of the cheque, the complaint at the earliest can be filed at least 45 days after the issue of the notice and admittedly in this case, the complaint having being filed only after 22 days of issue of notice, the same has rightly been held to be premature hence, it is submitted that there is no illegality in the impugned judgment passed by the trial court. Therefore, it is submitted that special leave ought not be granted to the appellant to present the appeal.
7. It is a settled principle of law that the period of reckoning of 15 days as required under Section 138 (c ) read with section 142 of the N.I. Act in a case where the complainant cannot bring on record any evidence as to when the notice of demand of the cheque amount was received by the accused is to start from the 30th day from the date of dispatch of the demand-cum-legal notice hence the complaint at the earliest can be filed only after 45 days from the date of dispatch of demand notice as has been held by the Hon’ble Supreme Court of India in the case of Subodh S. Salaskar vs. Jayprakash M. Shah and
