1

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). 000868 OF 2019

(@SLP(Crl) No(s). 10811 of 2018)

Birendra Prasad Sah

…Appellant(s)

VERSUS

The State of Bihar & Anr.

…Respondent(s)

J U D G M E N T

Dr Dhananjaya Y Chandrachud, J

1

Delay condoned.

2

Leave granted.

3

This appeal arises from a judgment of a learned Single Judge of the High Court

of Judicature at Patna dated 10 May 2018 by which an order taking cognizance of an

offence under Section 138 of the Negotiable Instruments Act, 1888¹ has been quashed.

1 “Act”

Digitally signed by

MANISH SETHI

Date: 2019.05.13

16:56:59 IST

Reason:

Signature Not Verified

2

4

The facts, briefly stated, are thus:

5

The dispute arises over two cheques drawn on the State Bank of India in the

amount of Rs 36,00,000 and Rs 13,00,000 which were returned unpaid under a memo

issued by the UCO Bank, Begusarai on 20 November 2015. The appellant received the

memo on 4 December 2015. Following this, a legal notice was issued on 31 December

2015 intimating the dishonour of the cheque. According to the appellant, between 14

February 2016 and 23 February 2016, he made queries with the postal department but

no proof of service was provided. Accordingly, on 26 February 2016, a second legal

notice was issued. This was replied to by the second respondent on 2 March 2016.

Eventually, a complaint under Section 138 was instituted on 11 May 2016.

6

The Chief Judicial Magistrate, Begusarai by an order dated 14 July 2016,

condoned the delay in filing the complaint. While taking cognizance, the CJM issued

summons to the second respondent. The second respondent instituted revisional

proceedings before the Sessions Judge which were rejected on 8 March 2017. In a

further recourse to the High Court under Section 482 CrPC, the learned Single Judge

held that the complaint under Section 138 was not filed within the statutory period of

thirty days prescribed under Section 138 as a result of which the proceedings were

quashed.

7

Assailing the judgment of the High Court, Mr Nagendra Rai, learned Senior

Counsel submitted that in MSR Leathers v. S Palaniappan² a three judge Bench of this

Court has taken the view that the issuance of successive notices is permissible under

the provisions of Section 138 having regard to the object of the legislation. Moreover,

2 (2013) 1 SCC 177

3

the learned Senior Counsel submitted that the delay in the institution of the complaint

was condoned by the CJM under Section 142. Hence, there was an error on the part of

the High Court in quashing the proceedings.

8

On the other hand, Mr Jay Savla, learned Senior Counsel appearing on behalf of

the second respondent submitted that:

(i)

The second legal notice dated 26 February 2016 was sent beyond a period of

thirty days of the receipt of the memo of dishonour on 4 December 2015 and

hence cannot be the basis of a valid institution of a criminal complaint;

(ii)

If at all, the complaint could have only been instituted on the basis of the first

legal notice dated 31 December 2015 which was within thirty days of the receipt

of the memo of dishonour;

(iii)

The complaint which was lodged on 11 May 2016 was beyond the stipulated

period from the date of issuance of the first notice;

(iv)

The CJM had condoned the delay which had occurred in the institution of the

complaint only for the period after 6 April 2016 after the issuance of the second

notice; and

(v)

In the decision of the three judge Bench in MSR Leathers (supra), there was a

re-presentation of the cheque as a result of which, a fresh notice was held to be

within the ambit of the law.

9

Section 138 provides thus:

“138. Dishonour of cheque for insufficiency, etc., of funds

in the account. –

Where any cheque drawn by a person on an account

maintained by him with a banker for payment of any amount

of money to another person from out of that account for the

4

dischar