Nafr High Court
Case Details
1 2025:CGHC:17695 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 303 of 2022 1 - Nandkumar Chandra S/o Shri Jeevanlal Chandra Aged About 51 Years R/o Village Rajgamar Naka, Raipur, Tahsil And District Raipur Chhattisgarh (Complainant) ... Appellant versus
Legal Reasoning
1 - Hetram Kurrey S/o Shri Bahoran Kurrey, R/o Mines Quarter No. 16 Jagdamda Mandir, Saraswati Chowk, Rajgamar, Tehsil And District - Korba Chhattisgarh (Accused) ... Respondent(s) For Appellant : Shri Prateek Sharma, Advocate. For Respondent(s) : Shri Pawan Shrivastava, Advocate. Hon'ble Shri Deepak Kumar Tiwari, J Judgment on Board 17/04/2025 : 1. This Appeal has been filed against the judgment dated 8.10.2021 passed by the Judicial Magistrate First Class, Korba in Criminal Complaint Case No.1503/2015, whereby the respondent/accused has been acquitted of the charge under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the Act, 1881’). KRISHNA KUMAR BARVE Digitally signed by KRISHNA KUMAR BARVE Date: 2025.04.17 17:29:41 +0530 2 2. The facts lie on a narrow compass. The respondent/accused had borrowed a loan of Rs.4 lakhs from the appellant in cash on 16 th September, 2014 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 the complaint was filed on 19th June, 2015 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 15.6.2015, which has been recorded in para-21 of the impugned judgment, has acquitted the respondent/accused of the charge. Counsel for the appellant further submits that the trial Court has placed reliance on the judgment of the Hon’ble Supreme Court in the matter of Yogendra Pratap Singh Vs. Savitri Pandey and Another1. In the said matter, the complaint was filed before the expiry of 15 days from the date of receipt of notice under clause (c) of the 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:- 1 (2014) 10 SCC 713 2 2022 SCC OnLine SC 1711 3 “35. Can an offence under Section 138 of the NI Act be said to have been committed when the period provided in 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 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.” 4. 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. 5. On the other hand, learned counsel for the respondent/accused would support the impugned judgment. 4 6. I have heard learned counsel for the parties at length and perused the record with utmost circumspection. 7. Perusal of the impugned judgment would show that the trial Court has only discussed the grounds. Since the complaint was premature and such complaint was held to be not maintainable in the light of judgment of the Hon’ble Supreme Court in the matter of Yogendra Pratap Singh (Supra), the respondent/accused was acquitted of the charge under Section 138 of the Act, 1881. Since the complaint was premature, the finding recorded by the trial Court appears to be just and proper on such score. 8. 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
9. For the foregoing, the Appeal is allowed. Judge Sd/- (Deepak Kumar Tiwari) Barve