HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

S.B. Crml Leave To Appeal No. 419/2019

Sahiram S/o Shri Surjaram, Aged About 44 Years, By Caste

Nayak, R/o Village 9 Q, Post Office Mirzewala, Tehsil And District

Sriganganagar (Raj.).

----Appellant

Versus

Brijlal S/o Shri Surjaram, Aged About 44 Years, By Caste Nayak,

R/o Village 9 Q, Post Office Mirzewala, Tehsil And District

Sriganganagar (Raj.).

----Respondent

For Appellant(s)

:

Mr. Himmat Jagga

For Respondent(s)

:

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

26/04/2022

In wake of instant surge in COVID-19 cases and spread of its

highly infectious Omicron variant, abundant caution is being

maintained, while hearing the matters in Court, for the safety of

all concerned.

This criminal leave to appeal has been preferred claiming for

the following reliefs :-

“It is, therefore, respectfully prayed that this application for

leave to appeal may kindly be accepted and the application for

leave to appeal may kindly be treated as appeal against acquittal

and the judgment impugned dated 02.08.2019 passed by the

learned Judicial Magistrate, Sri Ganganagar, District Sri

Ganganagar in Regular Criminal Case No.73 of 2015 (CIS

No.297 of 2015) Sahiram Vs. Brijlal may kindly be quashed and

(2 of 3)

[CRLLA-419/2019]

set aside and the accused-respondent be convicted for the

offence under Section 138 of the Negotiable Instruments Act.”

This Court observes that the mandatory period of notice was

not adhered to by complainant and the complaint was filed before

15 days, which is the mandatory period.

Precedent law rendered by Hon’ble Apex Court in the matter

of Alavi Haji, C.C. Vs. Palapetty Muhammed and Ors.

(Criminal Appeal No.767/2007) decided on 18.05.2007, is

applicable in the matter.

Relevant portion of which reads as follows:-

“17. It is also to be borne in mind that the requirement of giving of

notice is a clear departure from the rule of Criminal Law, where

there is no stipulation of giving of a notice before filing a complaint.

Any drawer who claims that he did not receive the notice sent by

post, can, within 15 days of receipt of summons from the court in

respect of the complaint under Section 138 of the Act, make payment

of the cheque amount and submit to the Court that he had made

payment within 15 days of receipt of summons (by receiving a copy

of complaint with the summons) and, therefore, the complaint is

liable to be rejected. A person who does not pay within 15 days of

receipt of the summons from the Court along with the copy of the

complaint under Section 138 of the Act, cannot obviously contend

that there was no proper service of notice as required under Section

138, by ignoring statutory presumption to the contrary under Section

27 of the G.C. Act and Section 114 of the Evidence Act. In our view,

any other interpretation of the proviso would defeat the very object

of the legislation. As observed in Bhaskarans case (supra), if the

giving of notice in the context of Clause (b) of the proviso was the

same as the receipt of notice a trickster cheque drawer would get the

premium to avoid receiving the notice by adopting different

strategies and escape from legal consequences of Section 138 of the

Act.”

(3 of 3)

[CRLLA-419/2019]

This Court is of the considered opinion that the period of

fifteen days as prescribed under Section 138(c) of Act of 1881 is a

window available to the drawer of Negotiable Instrument to enable

him to satisfy the legally enforceable debt and to avoid criminal

proceedings.

The Legislature was conscious when 15 days time was given

as mandatory period under Section 138(c) to ensure that the

drawer gets a fair deal in the shape of opportunity to satisfy the

legally enforceable debt in case he desires to.

It is noted that normally in criminal law notice is not

mandatory but in the Negotiable Instruments Act a special

provision has been ma