Trivesh Kumar v. Nitin Goyal), under Section
Case Details
Neutral Citation No. - 2024:AHC:127018 HIGH COURT OF JUDICATURE AT ALLAHABAD (Sl.No.22) Court No. - 79 Case :- APPLICATION U/S 482 No. - 17102 of 2024 Applicant :- Nitin Goyal Opposite Party :- State of U.P. and Another Counsel for Applicant :- Anand Kumar Mishra,Shashi Kant Counsel for Opposite Party :- G.A. Hon'ble Anish Kumar Gupta,J.
Legal Reasoning
1. Heard Sri Rajeev Kumar Mishra, Advocate holding brief of Sri Anand Kumar Mishra, learned counsel for the applicant and Sri Prashant Saxena, learned AGA for the State. 2. The instant application has been filed seeking quashing of the summoning order dated 18.03.2024 as well as the entire proceeding of Complaint Case No.2103 of 2023 (Trivesh Kumar vs. Nitin Goyal), under Section 138 fo the Negotiable Instrument Act (in short 'the N.I. Act'), P.S. Indirapuram, District Ghaziabad, pending before the Additional Civil Judge (J.D.) / Judicial Magistrate, Court No. 2, Ghaziabad. 3. Learned counsel for the applicant submits that in the instant case, after dishonour of cheque on 26.07.2023, a legal notice was issued on 21.08.2023, which was received by the applicant herein on 22.08.2023. Learned counsel for the applicant submits that he has replied to the said notice and on 26.08.2023, which should be presumed to have been served on the opposite party no.2 within four days. Therefore, instant complaint has been filed on 04.10.2023, is a time barred complaint and without condonation of delay, cognizance has been taken and the the applicant has been summoned. He submits that since the complaint was time barred, the trial court could not have taken cognizance in the matter without condoning the delay. 4. Per contra, learned AGA submits that in the complaint, there is no assertion that any reply has been received by the complainant, though clear and categorical assertion has been made that the legal demand notice was issued on 21.08.2023 and was served on applicant herein on 22.08.2023. Therefore, in view of Section 138(c) of the N.I. Act, which was obligatory upon opposite party no.2 to wait for a period of 15 days whereby the cause of action for filing the complaint under Section 138 of the N.I. Act arises in favour of opposite party no.2 and thereupon he was entitled to file the complaint within 30 days thereafter. In the instant case, 15 days' period from 22.08.2023 would expire on 06.09.2023. Therefore, the complaint was validly filed within a period of one month in terms of Section 142 (1)(b) of the N.I. Act. Therefore, learned AGA submits that there is no illegality or delay in the summoning order passed by the trial court. 5. Having heard the rival submissions made by learned counsel for the parties, this Court has thoroughly gone through the record of the case. Before proceeding further, it would be relevant to note that the provisions of Section 138 as well as Section 142 of the N.I. Act reads as under: "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 discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless— (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. 142. Cognizance of offences:- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)— (a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138:Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period. (c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138. (2) The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction,— (a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or (b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated." 6. From perusal of Section 138 of the N.I. Act, the first condition is that cheque has to be presented within its validity period for encashment before the bank and the cheque has been dishonoured by the bank for the reason stated in Section 138 of the N.I.Act. Thereupon the payee is entitled to issue a demand notice within 30 days from the date of information received for dishonour and from the service of notice on the drawer of the cheque, he will have to wait for another period of 15 days, only then, the cause of action under Section 138 of the N.I.Act shall arise to file the complaint. Thereafter in terms of Section 142 (1) (b) of the N.I. Act, the payee has a further period from the date of cause of action as arises one month time to file the complaint. In the instant case, the cheque was issued on 31.05.2023 and the same was presented for encashment on 26.07.2023, when the same was dishonoured and the legal demand notice was issued by the opposite party no.2 on 21.08.2023, which was received by the applicant admittedly on 22.08.2023 Thereafter, in view of Section 138(c) of the N.I.Act, the cause of action shall arise only after 06.09.2023, in favour of the opposite party no.2 and thereafter a further period of one month to file a complaint. In view thereof, the complaint was filed on 04.10.2023, which was well within the period prescribed under Sections 138 and 142 of the N.I. Act. 7. Therefore, the contentions raised by the learned counsel for the applicant are unsustainable and therefore, the instant application is devoid of merit and is, accordingly, dismissed. Order Date :- 6.8.2024 Ashish Pd. (Anish Kumar Gupta,J.)