Premature filing of a complaint under section 138 of the Negotiable Instruments Act renders the complaint not maintainable.

JUDGMENT :

1. This petition has been filed for quashing of entire criminal proceeding in connection with Complaint Case No.722 of 2016 including order taking cognizance dated 06.03.2017 passed by the learned Judicial Magistrate, Ranchi whereby cognizance of offence under section 138 of Negotiable Instruments Act, 1881 has been taken and summons has been directed to be issued against the petitioner, pending in the court of Judicial Magistrate-VIII, Ranchi.

2. The complaint has been lodged alleging therein that the petitioner on behalf of M/s Media Eleven Pvt. Ltd. approached the respondent bank for a cash credit facility of Rs.1,25,00,000/- in capacity of a Director and accordingly the same was granted to M/s Media Eleven Pvt. Ltd. In view of the repayment of the above said loan the petitioner on behalf of M/s Media Eleven Pvt. Ltd. issued a cheque being No.197975 dated 05.02.2016 of Rs.4,00,000/- of Axis Bank, Ranchi Branch, Ranchi.

3. It is further alleged that on deposition of the cheque by the respondent bank the same was bounced and returned unpaid by the Axis Bank, Ranchi Branch, Ranchi with remarks ‘payment stopped by drawer’. Thereafter even after serving legal notice dated 26.02.2016 by the respondent and requesting for the payment of the dishonored cheque the same did not take place.

4. The learned counsel appearing for the petitioner submits that the cheque issued by the petitioner was dishonoured and returned back by the banker unpaid with return memo dated 08.02.2016 for the reason that ‘payment stopped by the drawer’ and the complainant thereafter sent a demand notice through his lawyer by registered post on 26.02.2016 under section 138 N.I.Act, however, when the cheque amount remained unpaid then this complaint was filed by the complainant on 17.03.2016.

5. She further submits that the cognizance is also not in accordance with law and the judicial mind has not been applied in taking cognizance. She further submits that the case has been filed prematurely as in the light of section 138(c) of the Negotiable Instruments Act (hereinafter referred to as the N.I.Act) 15 days was required to be looked into by the complainant however without looking into the statutory provision the complaint has been filed which is premature. She relied by on the case of ‘Subodh S.Salaskar v. Jayprakash M.Shan and Another, (2008) 13 SCC 689. Paragraph no.20, 22, 23, 25 are quoted below:

“20. The legal notice admittedly was issued on 17-1-2001. It was sent by speed post. It was supposed to be served within a couple of days. A bare perusal of the statements made in Para 10 of the complaint petition, as quoted hereinbefore, clearly demonstrates that although the actual date of service of notice was allegedly not known, the complainant proceeded on the basis that the same was served within a reasonable period, otherwise in absence of service of notice or deemed service thereof, the question of non-compliance with clause (c) of the proviso appended to Section 138 of the Act would not arise and consequently the complaint petition would not be maintainable.

22. In terms of the provisions of the General Clauses Act, a notice must be deemed to have been served in the ordinary course subject to the fulfilment of the conditions laid down therein. Section 27 of the General Clauses Act reads as under:

“27. Meaning of service by post.—Where any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression ‘serve’ or either of the expression ‘give’ or ‘send’ or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.”

23. Thirty days' time ordinarily must be held to be sufficient f