Rajeev Gupta vs Prem Singh on 2 January, 2018

Himachal Pradesh High Court

Rajeev Gupta vs Prem Singh on 2 January, 2018
Bench: Honourable Mr. Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MMO No. 219 of 2017

Date of decision: 22.12.2017

Rajeev Gupta Petitioner.

Versus
Prem Singh Respondent.

Coram

The Hon'ble Mr.Justice Sureshwar Thakur, J.

Whether approved for reporting?1 Yes.

For the petitioner: Mr. C.P. Attri, Advocate.

For the respondents: r Ms. Aruna Chauhan, Advocate.

Sureshwar Thakur, J. (oral)

The instant criminal revision petition stands directed against the impugned order(s) pronounced, on
14.07.2016, by the learned Magistrate concerned, upon a complainant instituted before, him, under
Section 138 of the Negotiable Instrument Act, whereby he ordered for issuance of summons in
vis-à-vis the accused.

Whether the reporters of the local papers may be allowed to see the Judgment?

2. The learned counsel for the petitioner has contended with vigour, that, the summoning order is
jurisdictionally vitiated, it, begetting infraction(s) of the .

mandate of Section 138(c) of the Negotiable Instruments Act, 1881, provision whereof stand(s)
extracted hereinafter:

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 Rajeev Gupta vs Prem Singh on 2 January, 2018

"(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, r
within fifteen days of the receipt of the said notice."

wherein there is a clear express mandate, (i) of, the complainant being barred vis-à-vis its
institution, before the Magistrate concerned, unless 15 days markedly expire since an apposite
statutory notice, is evidently served upon the respondent, (ii) also unless, within, the aforesaid
period, the noticee evidently fails to liquidate his liability(s) vis-à-vis the apposite payee or holder in
due course, of, the negotiable instrument.

The learned counsel for the petitioner further contends that, with evidently no compliance being
meted therewith, given (iii) the signatures of the respondent-

accused not occurring on, the reverse of the RAD cover carrying there within the statutory notice
(iv) .

wherefrom it is to be inferred of his being not evidently served with the statutory notice. (vi)
thereupon renders the taking of cognizance, to be legally frail.

However, the aforesaid submission, cannot, be accepted, as, the reverse of the RAD cover issued by
the petitioner, contains, an endorsement of the postal agency concerned, with an echoing therein of,
the accused proceeding for tour. Consequently, the only inference drawable therefrom, of its, being
made in the presence of the accused. (vi) Prima facie also with hence the addressee(s) refusing to
accept the statutory notice, upon, the ground mentioned, on, the reverse of RAD cover (vii)
thereupon their refusal, bears, the concomitant effect of their refusal to accept service of statutory
notice rather tantamounting to theirs being served (vii) Moreso when at this stage, no material
exists, for, displacing vigours thereof.

3. The learned counsel for the respondent has relied, upon, a judgement of this Court reported in
Latest HLJ-2009 (H.P.)649 rendered in case titled as .

Rattan Chand vs. Kanwar Ram Kripal and another, AND upon a verdict reported in Latest HLC
2010 (H.P)51 titled as Jaram Singh vs. Joginder Singh Parmar "AND" submits (i) that with the
complainant concerned in consonance with the mandate borne therein rather on the day
succeeding, the endorsement, made, by the Postal agency concerned proceeding, to institute the
complaint (ii) AND the Magistrate concerned, entertaining, the complaint, whereas, even if the
complaint was presentable only upon expiry of 15 days, since the evident service of statutory service,
upon the accused,

(iii) hence renders any cognizance taken by the Magistrate concerned to be hence not
jurisdictionally vitiated. The aforesaid submission carries immense weight given (iv) it being therein
expressly postulated, of, vis-à-vis institution of complaints, before, expiry of a period of 15 days,
since evident service of statutory notice upon the accused rather not warranting its dismissal, (iv)
rather, the Magistrate concerned .

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 Rajeev Gupta vs Prem Singh on 2 January, 2018

postponing the taking of cognizance. Thereupon, the counsel for the respondent contends, that, with
cognizance being evidently taken upon the complaint, in the month of July, hence, renders the
taking of cognizance thereon to fall in tandem therewith especially when hence more than 15 days
expired, since the institution of the complaint.

4. The counsel for the petitioner herein, has also relied upon, a judgement rendered by the Hon'ble
Apex Court, in case titled Yogendra Pratap Singh vs. Savitri Pandey and another, reported in
2014(4) CCC 305 (S.C.), relevant paragraphs whereof are reproduced hereinafter:

"36. 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 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.

37. A complaint filed before expiry of 15 days from the date on which notice has been served on
drawer/accused cannot be said to disclose the cause of action in terms of clause (c) of the proviso to
Section 138 and upon such complaint which does not disclose the cause of action the Court is not
competent to take cognizance. A conjoint reading of Section 138, which defines as to when and
under what circumstances an offence can be said to have been committed, with Section 142(b) of the
NI Act, that reiterates the position of the point of time when the cause .

of action has arisen, leaves no manner of doubt that no offence can be said to have been committed
unless and until the period of 15 days, as prescribed under clause (c) of the proviso to Section 138,
has, in fact, elapsed. Therefore, a Court is barred in law from taking cognizance of such complaint. It
is not open to the Court to take cognizance of such a complaint merely because on the date of
consideration or taking cognizance thereof a period of 15 days from the date on which the notice has

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 Rajeev Gupta vs Prem Singh on 2 January, 2018

been served on the drawer/accused has elapsed. We have no doubt that all the five essential features
of Section 138 of the NI Act, as noted in the judgment of this Court in Kusum Ingots & Alloys Ltd.19
and which we have approved, must be satisfied for a complaint to be filed under Section 138. If the
period prescribed in clause (c) of the proviso to Section 138 has not expired, there is no commission
of an offence nor accrual of cause of action for filing of complaint under Section 138 of the NI Act.

38. We, therefore, do not approve the view taken by this Court in Narsingh Das Tapadia1 and so also
the judgments of various High Courts following Narsingh Das Tapadia1 that if the complaint under
Section 138 is filed before expiry of 15 days from the date on which notice has been served on the
drawer/accused the same is premature and if on the date of taking cognizance a period of 15 days
from the date of service of notice on the drawer/accused has expired, such complaint was legally
maintainable and, hence, the same is overruled.

39. Rather, the view taken by this Court in Sarav Investment & Financial Consultancy2 wherein this
Court .

held that service of notice in terms of Section 138 proviso

(b) of the NI Act was a part of the cause of action for lodging the complaint and communication to
the accused about the fact of dishonouring of the cheque and calling upon to pay the amount within
15 days was imperative in character, commends itself to us. As noticed by us earlier, no complaint
can be maintained against the drawer of the cheque before the expiry of 15 days from the date of
receipt of notice because the drawer/accused cannot be said to have committed any offence until
then. We approve the decision of this Court in Sarav Investment & Financial Consultancy2 and also
the judgments of the High Courts which have taken the view following this judgment that the
complaint under Section 138 of the NI Act filed before the expiry of 15 days of service of notice could
not be treated as a complaint in the eye of law and criminal proceedings initiated on such complaint
are liable to be quashed."

Wherein a contrary view therewith has been taken (i) especiously of presentation(s) of complaint(s)
before expiry of 15 days, of, evident service of statutory notice, upon the accused, rather
disempowering, the Magistrate concerned, to take cognizance(s), of the offence borne in the
complaint (i) especially with 15 days evidently not expiring, since the accused being evidently served
with a statutory notice. Given the complainant instituting a complaint before the .

Magistrate, before, expiry of 15 days, since evident service of statutory notice, upon the accused, (ii)
thereupon the Magistrate concerned was not holding any jurisdiction, to take cognizance thereon.
The strength of Hon'ble Judges, of, the Hon'ble Apex Court, who, rendered verdict in Yogendra
Pratap Singhs' case (supra) is numerically higher than the bench strength of the Hon'ble Apex Court,
earlier therewith rendering the verdicts relied upon by the counsel for the respondents, (iii)
thereupon, the view propounded in Yogendra Pratap Singh's case (supra), holds prevalence and
clout vis-à-vis earlier therewith, verdicts rendered, by a Coram of Hon'ble Judges, of, the Hon'ble
Apex Court, lesser vis-à-vis the coram of Hon'ble judges of the Hon'ble Apex Court, who rendered
the latter judgement in case titled Yogendra Pratap Singh's case (supra). (iv) Consequently the

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 Rajeev Gupta vs Prem Singh on 2 January, 2018

complaint instituted before the learned Magistrate, was not maintainable, unless, 15 days expired
since the service of statutory notice, upon, the accused and .

also taking of any postponed cognizance thereon, is, hence also statutorily vitiated. Petition is
allowed.

Accordingly, impugned order is set-aside. No cost.

22nd December, 2017 ( Sureshwar Thakur)

Judge.

r to

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