A complaint under Section 138 of the N.I. Act is not maintainable if filed before the statutory fifteen-day notice period has expired, rendering any cognizance taken by the court invalid.

JUDGMENT :

S.K. SAHOO, J.

The petitioner Krishna Chandra Patra, who is the complainant in 1.C.C. No.2489 of 2012, has filed this CRLLP petition under section 378(4) of Cr.P.C. for grant of leave to file appeal against the impugned judgment and order dated 24.06.2022 passed by learned Special Judge (C.B.I.), Court No.1 -cum- Additional Sessions Judge, Bhubaneswar in Crl. Appeal No.98 of 2019 in acquitting the opposite party Jambeswar Patra of the offence under section 138 of the Negotiable Instruments Act, 1881 (hereafter ‘N.I. Act’). The opposite party faced trial in the Court of learned S.D.J.M., Bhubaneswar in 1.C.C. Case No.2489 of 2012 for the offence under section 138 of the N.I. Act and vide judgment and order dated 03.12.2019 found guilty of such offence and sentenced to undergo S.I. for a period of one year and to pay a compensation of Rs.20,00,000/- (rupees twenty lakh) only to the petitioner under section 357(3) of Cr.P.C., in default, to undergo S.I. for a further period of four months.

2. The case of the complainant-petitioner, in short, is that the petitioner was a special class contractor and permanently resides at Plot No.6/107, IRC Village, P.S. Nayapalli, Bhubaneswar in the district of Khurda and the opposite party is also a permanent resident of Plot No.4387/4986, Tankapani Road, Pandab Nagar, Lane-4, P.S. Badagada, Bhubaneswar-18 in the district of Khurda. The opposite party had two numbers of plots under Khata No.224, Plot No.1203 comprising of area Ac.0.250 decimals and Plot No.1203/1440 having an area Ac.0.50 decimals in Mouza Patharagadia within the city of Bhubaneswar. The opposite party in order to sell the aforesaid properties contacted to the petitioner and the petitioner agreed to purchase the same. On 08.09.2010, the opposite party received an amount of Rs.15,00,000/- (rupees fifteen lakh) from the petitioner and to that effect an agreement was executed before Sri B.N. Biswal, Notary Public, Bhubaneswar. The total consideration was fixed at Rs.25,00,000/- (rupees twenty five lakh) and the rest Rs.10,00,000/- (rupees ten lakh) was to be paid by the petitioner at the time of registration of sale deeds. The petitioner requested the opposite party for executing the registered sale deed but the opposite party kept avoiding him, even though, it was specifically agreed by the opposite party in the agreement that the execution of the registered sale deed would be completed within two months from the date of agreement. The opposite party after receiving Rs.15,00,000/- (rupees fifteen lakh) from the petitioner neither executed the registered sale deed nor returned the amount of Rs.15,00,000/- (rupees fifteen lakh) to the petitioner. Later the petitioner came to know that the opposite party had already alienated these properties to Susanta Pradhan and Digambar Malla for which he obtained certified copies of those sale deeds and contacted the opposite party to return his money. In order to repay the amount, the opposite party issued a cheque bearing No.755993 dated 27.07.2012 amounting to Rs.15,00,000/- (rupees fifteen lakh) drawn on State Bank of India, IDCO Tower Branch, Bhubaneswar. The petitioner deposited the cheque in his bank i.e. State Bank of India, Main Branch, Bhubaneswar for encashment on 02.08.2012 but the cheque was dishonoured on 03.08.2012 due to ‘insufficient of funds’. On getting intimation from the bank regarding dishonor of cheque, the petitioner on 14.08.2012 issued a legal notice to the opposite party through registered post with A.D. through his Advocate demanding refund of his money. But the postal peon made two endorsements on the back side of the registered letter mentioning ‘addressee absent’. After a long time, the original notice along with the registered envelope and A.D. was returned back to the petitioner’s Advocate. Finding no other alternative, the petitioner filed complaint case against the opposite party and accordingly, cognizance of offence under section 138 of the N.I. Act w