High Court of Chhattisgarh
Case Details
1 AVINASH SHARMA Digitally signed by AVINASH SHARMA Date: 2025.06.20 19:00:07 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR 2025:CGHC:26395 NAFR ACQA No. 175 of 2025 1 - Anil Kumar Chandra S/o Late Shyam Lal Chandra Aged About 41 Years R/o Ward No.-13, Dabhra, P.S.- Dabhra, District- Sakti, Chhattisgarh, (Complainant) Versus ... Appellant.
Legal Reasoning
1 - Maniram Chandra S/o Shri Mohitram Chandra Aged About 47 Years R/o Gobra, P.S.- Dabhra, District- Sakti, Chhattisgarh, (Accused) ... Respondent(s) For Appellant : Shri Pawan Shrivastava, Advocate. For Respondent(s) : Ms. Apoorva Goyal appears on behalf of Shri Manoj Paranjpe, Advocates. Hon'ble Shri Deepak Kumar Tiwari, J Judgment on Board 20/06/2025 1. This Appeal has been filed against the judgment dated 19.12.2024 passed by the Judicial Magistrate First Class, Dabhra, District Janjgir Champa (C.G.) in Criminal Case No.409/2023, whereby the respondent/accused has been acquitted of the charge under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the Act, 1881’). 2. The facts lie on a narrow compass. The respondent/accused had taken a loan of Rs.8 lakhs from the appellant in cash on 18.07.2021 2 and for returning the same, he has issued a cheque which has been dishonoured. Even after the receipt of legal notice, when the payment was not made, a complaint has been filed and the respondent/accused has been acquitted of the charge by the impugned judgment. Hence this appeal. 3. At the outset, learned counsel for the appellant/complainant would submit that the trial Court only on the ground that a premature complaint was filed on 05.07.2023 i.e. before the expiry of 15 days from the date of receipt of notice issued under clause (c) of the proviso to Section 138 of the Act, 1881, as the notice was received on 20.06.2023, which has been recorded in para-19 of the impugned judgment, has acquitted the respondent/accused of the charge. 4. Learned counsel for the appellant submits that under similar circumstances the Hon’ble Supreme Court in the matter of Yogendra Pratap Singh Vs. Savitri Pandey and Another1, wherein, the complaint was filed before the expiry of 15 days from the date of receipt of notice under clause (c) of proviso to Section 138 of the Act, 1881 and the same was held to be not maintainable. The said judgment was delivered by the 3 Judge Bench of the Hon’ble Supreme Court. Learned counsel for the appellant would further submit that recently, the said judgment has been followed in the matter of Gajanand Burange Vs. Laxmi Chand Goyal2 wherein para-35 of the judgment in the matter of Yogendra Pratap Singh was referred, which reads as under:- “35. Can an offence under Section 138 of the NI Act be said to have been committed when the period provided in 1 (2014) 10 SCC 713 2 2022 SCC OnLine SC 1711 3 clause (c) of the proviso has not expired? Section 2(d) of the Code defines ‘complaint’. According to this definition, complaint means any allegation made orally or in writing to a Magistrate with a view to taking his action against a person who has committed an offence. Commission of an offence is a sine qua non for filing a complaint and for taking cognizance of such offence. A bare reading of the provision contained in clause (c) of the proviso makes it clear that no complaint can be filed for an offence under Section 138 of the NI Act unless the period of 15 days has elapsed. Any complaint filed before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint at all in the eye of law. It is not the question of prematurity of the complaint where it is filed before expiry of 15 days from the date on which notice has been served on him, it is no complaint at all under law. As a matter of fact, Section 142 of the NI Act, inter alia, creates a legal bar on the Court from taking cognizance of an offence under Section 138 except upon a written complaint. Since a complaint filed under Section 138 of the NI Act before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint in the eye of law, obviously, no cognizance of an offence can be taken on the basis of such complaint. Merely because at the time of taking cognizance by the Court, the period of 15 days has expired from the date on which notice has been served on 4 the drawer/accused, the Court is not clothed with the jurisdiction to take cognizance of an offence under Section 138 on a complaint filed before the expiry of 15 days from the date of receipt of notice by the drawer of the cheque.” 5. Learned counsel for the appellant would further submit that in view of the judgments passed by the Hon’ble Supreme Court in the aforesaid cases, a liberty may be reserved in favour of the appellant/complainant to present/file a fresh complaint, and the appellant/complainant may be permitted to explain and satisfy the Court as to the sufficient cause as per the proviso to Section 142 (b) of the Act, 1881. 6. On the other hand, learned counsel for the respondent/accused would support the impugned judgment. 7. I have heard learned counsel for the parties at length and perused the record with utmost circumspection. 8. Perusal of the impugned judgment would show that the trial Court has dismissed the complaint and acquitted the accused, since the complaint was premature, therefore, the finding recorded by the trial Court appears to be just and proper on such score. 9. Considering the entire fact situation of the case, it would be appropriate to grant liberty to the appellant/complainant to institute a fresh complaint within a period of one month from the date of receipt of a copy of this judgment. Ordered accordingly. It is made clear that if the complaint is not filed within the time prescribed under Section 142(b), the appellant/complainant may seek the benefit of the proviso satisfying the Court of sufficient cause.
Decision
10.For the foregoing, the Appeal is allowed. 5 11.Registry shall return the certified copy of impugned judgment/order and relevant documents to counsel for the appellant after retaining photocopy of the same. Sd/- (Deepak Kumar Tiwari) Judge Avinash