Point of Law: Negotiable instrument - Notice - Cause of action for filing a complaint case under Section 138 of the N.I. Act could not arise prior to expiry of 15 days from the date of service of legal notice on the accused.

JUDGMENT :

ANUBHA RAWAT CHOUDHARY, J.

1. Heard Mrs. Vani Kumari, learned counsel appearing on behalf of the petitioner.

2. Heard Ms. Niki Sinha, learned A.P.P. appearing on behalf of the opposite party-State.

3. Heard Mr. S.K. Laik, learned counsel appearing on behalf of the opposite party no. 2.

4. This criminal revision is directed against the judgment dated 24.05.2012 passed by the learned Additional Judicial Commissioner XVI, Ranchi in Criminal Appeal No. 78 of 2011 whereby the learned Additional Judicial Commissioner XVI has dismissed the Criminal Appeal which was filed against the judgment dated 27.04.2011 passed by the learned Judicial Magistrate, 1st Class, Ranchi in connection with C-815/2008 : T.R. No. 1369 of 2011 whereby the learned Judicial Magistrate, 1st Class, has convicted the petitioner under Section 138 of the Negotiable Instrument Act and sentenced him to undergo simple imprisonment for six months and he has been further ordered to pay compensation of Rs. 2,00,000/- to the complainant under Section 357(3) Cr.P.C.

Argument on behalf of the petitioner

5. Learned counsel for the petitioner submits that the impugned judgments are perverse, in as much as, there is no finding recorded regarding service of notice in connection with bouncing of the cheques upon the petitioner although the same was sent by registered post on 04.03.2008. She also submits that the petitioner in his statement under Section 313 had denied the service of notice. The learned counsel submits that at best the service of notice could have been presumed to have been served only upon expiry of 30 days from its dispatch and thereafter, 15 days’ time was required to be given to the petitioner to respond to the demand notice. She submits that the complaint case was filed on 10.04.2008 and as per the timeline, the complaint itself was premature. She submits that in the aforesaid circumstances, the conviction of the petitioner under section 138 of Negotiable Instruments Act, 1881, cannot be sustained and calls for interference in revisional jurisdiction.

Argument on behalf of the Opposite Parties

6. Learned counsel appearing on behalf of the opposite party no. 2, while opposing the prayer, has submitted that there is no illegality or perversity in the impugned judgments and there is a little scope for interference in revisional jurisdiction.

7. The learned counsel for the opposite party no. 2, relied upon the order passed by the Hon’ble Supreme Court reported in C.C. Alavi Haji vs. Palapetty Muhammed and Another, (2007) 14 SCC 750 on the point of service of notice.

8. Learned counsel appearing on behalf of the opposite party-State has also supported the arguments advanced on behalf of the opposite party no. 2.

Rejoinder arguments of the petitioner

9. At this, the learned counsel for the petitioner submits that the aforesaid judgment of the Hon’ble Supreme Court was relating to return of un-served notice, however, in the present case there is no such case made out by the complainant, rather both the learned courts below have not recorded any finding regarding service of notice. She further submits that the timelines in case of Section 138 of Negotiable Instruments Act are to be strictly followed and the complaint case has been filed premature if deemed service of notice upon expiry of 30 days from its dispatch is taken into consideration even at this stage. It is reiterated that under aforesaid circumstances, the conviction of the petitioner cannot be sustained in the eyes of law.

Findings of this Court

10. After hearing the learned counsel for the parties and considering the materials available on record, this court finds that as per the prosecution story the complainant wanted to purchase a land and, in this connection, she saw the land and thereafter she paid Rs. 2 lacs (One lac cash and one lac by cheque) to the petitioner who assured that within six months he will perform registry of 08 decimals land in the name of complainant. After expiry of six months when