Filing a complaint under Section 138 of the N.I. Act before the expiry of the stipulated time period is not maintainable, and the complainant must establish her capacity to lend the amount in question.

JUDGMENT

Anil Kumar Choudhary, J. - Heard learned counsel for the 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 the appeal against the judgment of acquittal passed by the Judicial Magistrate 1st Class, Jamshedpur in C/1 Case No.2658 of 2014.

3. The learned counsel for the appellant submits that the complaint has been filed alleging commission of an offence punishable under section 138 of the N.I. Act. The accused person has been acquitted by the impugned judgment because of the fact that the complaint was presented prematurely. It is submitted by the learned counsel for the appellant that the cheque was dishonoured by return memo dated 29.05.2014. The complainant though her advocate sent legalcum-demand notice on 11.06.2014 and the accused received the notice on 14.06.2014 but in-spite of that she neither replied nor returned the amount of Rs.13,00,000/- for which the cheque was issued. In support of her case, the complainant proved the following documents:-

(I) Exhibit is Cheque bearing No. 044621 dated 29.03.2014.

(II) Exhibit 2 is Return Memo of S.B.I. dt. 29.5.2014.

(III) Exhibit 2/1 is Return Memo of IDBI dt. 29.5.2014.

(IV) Exhibit 3 is Legal-cum-Demand notice dt. 11.6.2014.

(V) Exhibit 4 is Postal Receipt dt. 11.6.2014.

The complainant examined herself as the sole witness of the case being the C.W.1. In her testimony, the complainant-C.W.1 has stated that she does not do any work for gain and is a house wife. She has further stated that she advanced the entire loan amount of Rs.13,00,000/- to the accused in installment. She could not say on which date the loan amount was advanced by her to the accused person. The C.W.1 admitted that she has not filed acknowledgement showing the delivery of the demand notice to the accused. C.W.1 further admitted that she has not mentioned the fact that she has taken any money from her husband or son after advancing it to the accused and also admitted that she has no proof of the fact that such notice was delivered to the accused or not. The learned trial court considered the fact that as the complainant failed to prove the fact of receipt of demand notice by the accused on 14.06.2014. The learned trial court went on the basis of the testimony of the complainant in her crossexamination where she admitted that she cannot produce any proof of delivery of the demand notice, hence keeping in view the ratio of the Judgment of Hon''ble Supreme Court of India in the case of Subodh S. Salaskar vs. Jayprakash M. Shah and Another, (2009) 3 SCC(Cri) 834 paragraph no. 25 of which reads as under:-

"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."

The trial court held that as the date of receipt of notice by the accused would be considered 30 days from the date of the issue of the notice. So accordingly, the 30 days period falls on 10.07.2014. This calculation by the trial court is apparently based on the judgment of the Hon''ble Supreme Court of India in the case of Yogendra Pratap Singh v. Savitri Pandey, (2014) 10 SCC 713 wherein the Hon''ble Supreme Court has held as under in paragraph no. 35 & 41:-

"35. Can an offence under Section 138 of the NI Act be said to have been committed when the period provided in clause (c) of the proviso has not expired? Section 2(d) of the Code defines "complaint". According to this definition, complaint means any allegation made orally or in writing to a Ma