The cause of action for filing a complaint case under Section 138 of the Negotiable Instruments 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 Mr. A.K. Sahani, the learned counsel appearing on behalf of the petitioner.

2. Heard Mr. P.D. Agrawal, the learned A.P.P. appearing on behalf of the Opposite Party-State.

3. Heard Mr. Rohit Ranjan Sinha, the learned counsel appearing on behalf of Opposite Party No. 2.

4. The present criminal revision petition has been filed challenging the judgment dated 22.11.2010 passed by the learned Additional Sessions Judge, FTC-III, Dhanbad in Criminal Appeal No. 115 of 2008 whereby the judgment of conviction and the order of sentence both dated 03.04.2008 passed by the learned Judicial Magistrate, 1st Class, Dhanbad in C.P. No. 179 of 2003 has been affirmed and the criminal appeal has been dismissed. The petitioner has been convicted for offence under Section 138 of Negotiable Instruments Act and has been sentenced to undergo Rigorous Imprisonment for a term of six months and to pay a fine of Rs. 2 lakhs and in case of default of payment of fine, the petitioner has been directed to further undergo Simple Imprisonment for three months.

5. The learned counsel for the petitioner submitted that the impugned judgment of conviction of the petitioner is ex-facie perverse in view of the fact that the condition precedent for filing the complaint case was itself not satisfied. The learned counsel submitted that in the present case, the legal notice was sent on 16.01.2003 through registered post and the complaint case was filed on 11.02.2003. He referred to the complaint petition as well as the impugned judgment to submit that there is no averment regarding the fact as to what happened to the legal notice and even if the legal notice is assumed to be served upon the accused, then also 30 days from 16.01.2003 would expire only on or about 15.02.2003 and thereafter, 15 days was required to be given to the accused to pay the cheque amount, but in the instant case the complaint was filed on 11.02.2003 and accordingly, the complaint itself was premature.

6. The learned counsel for the petitioner referred to the judgment passed by this Court in Cr. Rev. No. 827 of 2012 decided on 13.07.2021 and referred to Para-24 thereof which, in turn, has been relied upon the judgment passed by the Hon’ble Supreme Court reported in Yogendra Pratap Singh vs. Savitri Pandey and Another, (2014) 10 SCC 713.

7. The learned counsel for the Opposite Party No. 2, while opposing the prayer, submitted that there are concurrent findings recorded by the learned courts below convicting the petitioner under Section 138 of Negotiable Instruments Act and therefore, the same may not be interfered with in revisional jurisdiction. However, during the course of argument, it has not been disputed that the legal notice was sent on 16.01.2003 and the complaint case was filed on 11.02.2003. Admittedly, there is no evidence or averment with regard to service of legal notice and/or as to what happened to the legal notice.

8. After hearing the learned counsel for the parties, this Court finds that altogether three witnesses were examined from the side of the prosecution. Exhibit-1 is the cheque dated 09.09.2002, Exhibit-2 and 3 are the cheque return memos dated 26.09.2002 and 04.01.2003 respectively and the case was filed pursuant to bouncing of cheque on 04.01.2003. Exhibit-4 is the postal receipt dated 16.01.2003 with regard to the demand notice dated 16.01.2003 marked as Exhibit-5. It is not in dispute that the cheque had bounced on account of insufficient fund.

9. Upon perusal of the impugned judgments, it appears that none of the witnesses has stated as to what happened to the legal notice and as to whether the same was served or not. A defence witness was also produced from the side of the accused indicating that he had intimated in the police station regarding loss of cheques and the defence evidence was also considered by the learned trial court indicating that the information to police (Exhibit-A with objection) did not even state the number of che