Smt. Dharmveeri v. State of U.P. and another) and the order dated
Case Details
HIGH COURT OF JUDICATURE AT ALLAHABAD (SN.17) Court No. - 79 Neutral Citation No. - 2024:AHC:133853 Case :- APPLICATION U/S 482 No. - 17138 of 2024 Applicant :- Smt Dharmveeri Opposite Party :- State of U.P. and Another Counsel for Applicant :- Shruti Malviya,Vivek Yadav Counsel for Opposite Party :- G.A. Hon'ble Anish Kumar Gupta,J.
Legal Reasoning
1. Heard Ms. Shruti Malviya, learned counsel for the applicant and Shri Kamlesh Kumar Tripathi, learned A.G.A. for the State. 2. The instant application under section 482 Cr.P.C. has been filed seeking quashing of the order dated 2.4.2024 passed by the Addl. Sessions Judge Court No. 13, Meerut in Criminal Revision No. 108 of 2024 (Smt. Dharmveeri Vs. State of U.P. and another) and the order dated 2.6.2023 passed by the Addl. Chief Judicial Magistrate, Court No. 5 Meerut in Case No. 11473 of 2023 (Tarun Kumar Vs. Dharmveeri and another). 3. Learned counsel for the applicant submitted that the impugned summoning order dated 2.6.2023 has been passed by the trial court on wrong assumption that the legal notice sent by the complainant was not returned back whereas specific allegation has been made in paragraph 9 of the complaint that the notice dated 13.4.2023 was sent which was received by the applicant herein on 19.4.2023. Thereafter the same was returned back after opening the same by the the applicant in collusion with the postman. Therefore, such assumption by the trial court is a wrong assumption. Learned counsel for the applicant further submitted that the complaint has been filed as a delayed complaint. Relying upon the judgement of the Patna High Court in the case of Amjad Ali Khan @ Guddu Khan Vs. State of Bihar dated 1.9.2022 passed in Criminal Miscellaneous No. 85714 of 2019, the submission is that the cause of action for filing the complaint will arise from the date of issuance of notice i.e. 13.4.2023 whereas the complaint was filed on 17.5.2023, therefore, there was delay of four days and therefore complaint is not maintainable. Learned counsel for the applicant therefore seeks quashing of the entire proceedings of the aforesaid case as well as the summoning order. 4. Per contra, learned A.G.A. for the State submits that the cause of action for filing a complaint under section 138 of the Negotiable Instruments Act arises only after the expiry of 15 days from the date of service of notice and not from the date of issuance of notice and after expiry of 15 days from the service of notice, the complainant has 30 days period to file the complaint in terms of Section 142(1)(b) of the N.I. Act. In the instant case notice was issued on 13.4.2023 and as per the complainant it was served on 19.4.2023. As per the tracking report it was sent back by the applicant in collusion with the post man after opening and reading the notice, therefore, the cause of action for filing the complaint will arise only after 15 days from 19.4.2023. Therefore, cause of action for filing the complaint will arise only on 3.5.2023 and the complainant has one month period for filing the complaint under section 142(1)(b) of the N.I. Act i.e. upto 2.6.2023, whereas in the instant case the complaint has been filed on 17.5.2023, which is well within the prescribed period under section 138 and 142(1)(b) of the N.I. Act. Therefore, there is no illegality in the impugned summoning order and no interference is required by this Court. 5. So far as the observation made by the trial court for presumption of service, which is inconsistent with the averments made in the complaint is concerned, that will not effect the trial as prima-facie case can be said to have been made out against the applicant herein in view of that presumption, as well. 6. Having heard the rival submissions of the learned counsel for the parties this Court has gone through the entire records of the case. 7. To appreciate the submissions advanced by the learned counsel for the parties it would be relevant to take note of the provisions of Section 138 and Section 142(1)(b) of the Negotiable Instruments Act, which are reproduced herein below: "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 provision 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, 5[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[(1)] Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),— (a) ............................. (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) .............................." 8. From perusal of Section 138 of the N.I. Act it is apparent that the cheque is required to be presented within its validity period and the same ought to have been dishonored. Thereafter within a period of 30 days from the date of intimation of dishonor received by the holder of the cheque the demand notice is required to be issued by the holder of the cheque and after service of notice the holder of the cheque is required to wait for notice period of 15 days. If the demand notice is not complied, the offence under section 138 of the N.I. Act is constituted and the cause of action for filing the complaint under section 138 of N.I. Act would arise after expiry of the said period of 15 days from the date of receipt of the notice. After the cause of action arises, the holder of the cheque has further needed one month period to file the complaint in terms of section 142(1)(b) of the N.I. Act. Therefore, looking to the facts of the instant case it is apparent that that the cheque was dishonored on 11.4.2023 for the reason "fund insufficient". Thereafter on 13.4.2023 a legal demand notice was sent by the opposite party no. 2 which was received by the applicant herein on 19.4.2023, therefore, after expiry of 15 days from 19.4.2023 i.e. 3.5.2023 the cause of action would arise to the opposite party no. 2 to file a complaint under section 138 of the N.I. Act and the opposite party no. 2 will have one month period from 3.5.2023 to file the complaint and the instant complaint has been filed on 17.5.2023. Therefore, the said complaint under section 138 of N.I. Act was filed well within limitation as prescribed under section 142(1)(b) of the N.I. Act after complying with the provisions of section 138 of N.I. Act, therefore, prima-facie a case is made out against the applicant herein. 9. So far as the observations made in the summoning order is concerned, it is apparent that the trial court has taken note of the fact that the legal demand notice was sent through registered post, however, without relying upon the averments made in the complaint whether it was actually served on behalf of the applicant herein or not. The trial court has gone through the presumption as provided under section 27 of the General Clauses Act and had presumed the service of the legal demand notice upon the applicant, thereupon, has found a prima-facie case against the applicant and has also found that the complaint was well within limitation and thereupon issued the summons against the applicant herein. Therefore this court do not find any illegality in the impugned summoning order. 10. The judgement of Patna High Court in the case of Amjad Ali Khan @ Guddu Khan (supra), with due respect, in the considered opinion of this Court is not in accordance with the provisions of Section 138 and 142(1)(b) of N.I. Act and the same is of no help to the applicant herein. 11. For the aforesaid reasons, the instant application lacks merit and is accordingly dismissed. Order Date :- 20.8.2024 o.k. (Anish Kumar Gupta,J.)