Complaint under section 138 of N.I. Act to be filed at least 45 days after the issue of demand notice in the absence of proof of acknowledgement of receipt by the accused.

JUDGMENT

I.A. No. 1113 of 2019

1. Heard the parties.

2. Learned counsel for the appellant submits that this interlocutory application has been filed seeking special leave to present appeal before this court. It is further submitted by learned counsel for the appellant that this complaint under section 138 of N.I. Act. has been dismissed on the ground that the same is premature.

3. It is the case of the complainant that the demand notice for payment of amount of the cheque which has been dishonored was issued on 10.04.2005 and there is no proof of acknowledgement of the receipt of the said notice by the accused persons. The complaint was admittedly filed on 08.05.2015. The learned trial court in the impugned judgment has held that since the complaint was filed less than 45 days from the date of issue of notice, hence, the complaint is premature. It is a settled principle of law that in case of acknowledgement of the demand notice is not received by the complainant; the complaint is to be filed at least 45 days after issue of demand notice. The Honble Supreme Court of India in the case of Subodh S. Salaskar vs. Jayprakash M. Shah and Another reported in 2009 (3) SCC (Cri) 834 held as under in paragraph no. 25 :-

"25. The complaint petition admittedly was filed on 20-4-2001. The notice having been sent on 17-1-2001, if the 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 the date of issuance thereof i.e. 16-2-2001. The accused was required to make payment in terms of the said notice within fifteen days thereafter i.e. on or about 2-3-2001. The complaint petition, therefore, should have been filed by 2-4-2001."

4. Accordingly, I do not find any illegality in the impugned judgment of the acquittal passed by learned trial court, hence, this is not a fit case where special leave to appeal be granted. Accordingly, this interlocutory application being without merit is rejected and consequently, this Acquittal Appeal also stands dismissed.