IN THE HIGH COURT OF JHARKHAND AT RANCHI

Criminal Revision No. 48 of 2012

Vivek Anand son of Sri Vijay Kumar Sharma, resident of J.J.

Enterprises, near Gupt Singh Kanda Khar, Hamidganj, P.O. &

P.S.- Daltonganj, District- Palamau

…

…

Petitioner

-Versus-

1. The State of Jharkhand

2. Bakhtiyar Ahmad Khan, son of Late Hazi Ishaq Khan,

resident of Mohalla Muslim Nagar, P.O. & P.S.- Daltonganj,

District- Palamau

…

… Opp. Parties

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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Petitioner

: Mr. Mrinal Kanti Roy, Amicus Curiae

For the State

: Mr. Ravi Prakash, A.P.P

For the Opp. Party No.2: Mr. Manoj Kumar No.2, Adv.

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Through Video Conferencing

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13/19.07.2021

Heard Mr. Mrinal Kanti Roy, Advocate, the learned amicus

Curiae representing the petitioner.

2.

Heard Mr. Ravi Prakash, the learned A.P.P. appearing on

behalf of the Opposite Party - State.

3.

Heard Mr. Manoj Kumar No.2, the learned counsel

appearing on behalf of the Opposite Party No.2.

4.

This criminal revision petition has been filed challenging

the legality, propriety and correctness of the Judgment dated

24.10.2011 passed by the learned District & Sessions Judge-II,

Palamau at Daltonganj in Criminal Appeal No. 4 of 2011 whereby

and whereunder the appeal filed by the petitioner against the

Judgment of conviction and the order of sentence dated 10.12.2010

passed by the learned Judicial Magistrate, 1^st Class, Palamau at

Daltonganj in connection with Complaint Case No. C-1263 of 2009

corresponding to T.R. No. 62 of 2010 has been dismissed. The

petitioner has been convicted for offence under Section 138 of

Negotiable Instruments Act, 1881 and has been sentenced to

undergo Simple Imprisonment for three months and to pay fine of

Rs. 4,00,000/- and in default, to undergo further Simple

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Imprisonment for three months. It was also directed that the

Complainant shall be compensated under Section 257 Cr.P.C to the

tune of Rs.3.5 lakhs due to loss incurred by him.

Arguments by the learned Amicus on behalf of the petitioner

5.

While advancing the arguments, learned Amicus Curiae

submitted that the present case can be disposed of on a short point

that the Complaint petition itself was premature as the statutory

period prescribed under the provisions of Section 138 of the

Negotiable Instruments Act, 1881 was not duly satisfied. Learned

Amicus Curiae also submitted that this is without prejudice to the

contention of the petitioner that the cheque itself was not issued

against any debt or liability.

6.

The learned counsel submitted that the material dates

would be the date of issuance of cheque of Rs.3.5 lakhs on

24.10.2009; the cheque bounced on 10.11.2009 on account of

“insufficient funds” and the legal notice was dispatched through

registered cover on 19.11.2009. He submitted that there is no

evidence of service of the legal notice to the petitioner and

accordingly, the learned court below has considered deemed

service of notice, which according to the learned Amicus Curiae

could has been taken only upon expiry of 30 days from the date of

dispatch of the legal notice. The learned Amicus Curiae submitted

that accordingly, the deemed service of the legal notice can at best

be taken as 18.12.2009. He submitted that thereafter, 15 days was

required to be given to the petitioner to make the payment to the

Complainant, but the Complaint case was filed on 22.12.2009 itself

i.e. on the 4^th day from the date of deemed service of notice, if taken

as 18.12.2009. The learned Amicus Curiae submitted that in view of

the aforesaid facts, the Complaint itself was premature and it was

no Complaint in the eyes of law as the condition precedent for

filing of the complaint case under Section 138 of the Negotiable

Instruments Act, 1881 was not satisfied on the date when the

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complaint petition was filed and accordingly, the learn