IN THE HIGH COURT OF JHARKHAND AT RANCHI Acq. App. (C) No.16 of 2018

(Against the judgment of acquittal passed by the Judicial Magistrate 1st Class, Jamshedpur in C/1 Case No.2658 of 2014)

Renu Devi, aged about 51 years, wife of Narendra Singh, resident of Radhikanagar, Kharangajhar, P.O. Telco Works, P.S. Telco, Jamshedpur, District East Singhbhum, Jharkhand

..... Appellant

Versus

• 1. The State of Jharkhand
• 2. Vidhyawati Devi, wife of Om Prakash Mishra, resident of Quarter No. 120, X-type, Near Water tunkey, Striaght Mile Road, Sidhgora Main Road, P.O. Agrico, P.S. Sidhgora, Jamshedpur, District – East Singhbhum, Jharkhand, presently residing at C/o Prabhakar Kumar Mishra, House No. 00622, Street-Flat, Bara Flats, Sidhgora City, Jamshedpur, P.O. Agrico, P.S. Sidhgora, Jamshedpur, District – East Singhbhum, Jharkhand.

….. Respondents

P R E S E N T

HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

For the Appellants	: Mr. Kumar Vaibhav, Advocate
	Mr. Rajesh Kumar, Advocate
For the State	: Addl. P.P.

By the Court:-

I.A. No.11421 of 2018

1. Heard learned counsel for the appellant and learned Addl. P.P. for the State.

2. This interlocutory application has been filed with a prayer for grant of special leave under Section 378 (4) of the Code of Criminal Procedure for presenting the appeal against the judgment of acquittal passed by the Judicial Magistrate 1st Class, Jamshedpur in C/1 Case No.2658 of 2014.

3. The learned counsel for the appellant submits that the complaint has been filed alleging commission of an offence punishable under section 138 of the N.I. Act. The accused person has been acquitted by the impugned judgment because of the fact that the complaint was presented prematurely. It is submitted

by the learned counsel for the appellant that the cheque was dishonoured by return memo dated 29.05.2014. The complainant though her advocate sent legalcum-demand notice on 11.06.2014 and the accused received the notice on 14.06.2014 but in-spite of that she neither replied nor returned the amount of Rs.13,00,000/- for which the cheque was issued. In support of her case, the complainant proved the following documents:-

• (I) Exhibit is Cheque bearing No. 044621 dated 29.03.2014.
• (II) Exhibit 2 is Return Memo of S.B.I. dt. 29.5.2014.
• (III) Exhibit 2/1 is Return Memo of IDBI dt. 29.5.2014.
• (IV) Exhibit 3 is Legal-cum-Demand notice dt. 11.6.2014.
• (V) Exhibit 4 is Postal Receipt dt. 11.6.2014.

The complainant examined herself as the sole witness of the case being the C.W.1. In her testimony, the complainant-C.W.1 has stated that she does not do any work for gain and is a house wife. She has further stated that she advanced the entire loan amount of Rs.13,00,000/- to the accused in installment. She could not say on which date the loan amount was advanced by her to the accused person. The C.W.1 admitted that she has not filed acknowledgement showing the delivery of the demand notice to the accused. C.W.1 further admitted that she has not mentioned the fact that she has taken any money from her husband or son after advancing it to the accused and also admitted that she has no proof of the fact that such notice was delivered to the accused or not. The learned trial court considered the fact that as the complainant failed to prove the fact of receipt of demand notice by the accused on 14.06.2014. The learned trial court went on the basis of the testimony of the complainant in her crossexamination where she admitted that she cannot produce any proof of delivery of the demand notice, hence keeping in view the ratio of the Judgment of Hon'ble Supreme Court of India in the case of Subodh S. Salaskar vs.

Jayprakash M. Shah and Another reported in 2009 (3) SCC (Cri) 834 paragraph

no. 25 of which reads as under:-

"25. The complaint petition admittedly was filed on 20-4-2001. The notice having been sent on 17-1-2001, if the presumption of service of notice within a reasonable time is raised, it should be deemed to have been served at best within a period of thirty days from the date of issuance thereof i.e. 16-2-2001. The accused was required to make payment in terms of the said notice within fifteen days thereafter i.e. on or about 2-3-2001. The complaint petition, therefore, should have been filed by 2-4-2001."

The trial court held that as the date of receipt of notice by the accused would be considered 30 days from the date of the issue of the notice. So accordingly, the 30 days period falls on 10.07.2014. This calculation by the trial court is apparently based on the judgment of the Hon'ble Supreme Court of India in the case of Yogendra Pratap Singh v. Savitri Pandey reported in 2014 (10) SCC 713 wherein the Hon'ble Supreme Court has held as under in paragraph no. 35 & 41:-

"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 the law. It is not the question of prematurity of the complaint where it is filed before the 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 the 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.

41. Section 142 of the NI Act prescribes the mode and so also the time within which a complaint for an offence under Section 138 of the NI Act can be filed. A complaint made under Section 138 by the payee or the holder in due course of the cheque has to be in writing and needs to be made within one month from the date on which the cause of action has arisen under clause (c) of the proviso to Section 138. The period of one month under Section 142(b) begins from the date on which the cause of action has arisen under clause (c) of the proviso to Section 138. However, if the complainant satisfies the court that he had sufficient cause for not making a complaint within the prescribed period of one month, a complaint may be taken by the court after the prescribed period. Now, since our answer to Question (i) is in the negative, we observe that the payee or the holder in due course of the cheque may file a fresh complaint within one month from the date of decision in the criminal case and, in that event, delay in filing the complaint will be treated as having been condoned under the proviso to clause (b) of Section 142 of the NI Act. This direction shall be deemed to be applicable to all such pending cases where the complaint does not proceed further in view of our answer to Question (i). As we have already held that a complaint filed before the expiry of 15 days from the date of receipt of notice issued under clause (c) of the proviso to Section 138 is not maintainable, the complainant cannot be permitted to present the very same complaint at any later stage. His remedy is only to file a fresh complaint; and if the same could not be filed within the time prescribed under Section 142(b), his recourse is to seek the benefit of the proviso, satisfying the court of sufficient cause. Question (ii) is answered accordingly."

The trial court then held that the complaint having been filed on 02.07.2014 i.e. before the 15 days of such presumed of receipt demand notice on 26.07.2014, the complaint is premature. Though on technicality, the learned trial court found the complaint to be not maintainable still the learned trial court also went on considering the facts that the complainant also failed to prove the source of income of her capacity to lend Rs.13,00,000/-. For this finding the trial court considered the fact that the complainant could not produce any pass-book entries nor could she establish her capacity for lending such huge amount of friendly loan when admittedly she does not have source of earning and she being a house wife and she has not borrowed any money from anybody and taking into consideration the settled principle of law as has been held by the Hon'ble Supreme Court in the case of Rangappa v. Mohan reported in AIR 2010 SC 1898 and also in the case of Kumar Exports v. Sharma Carpets reported in (2009) 2 SCC 513, the learned trial court dismissed the appeal.

4. The learned counsel for the appellant, relying upon the Judgment of Yogendra Pratap Singh v. Savitri Pandey (supra), submits that in view of the observation by the learned trial court that the complaint is premature, an opportunity be given to the appellant to file a fresh complaint by condoning the delay in presenting the appeal.

5. The learned Addl. P.P. on the other hand defended the impugned judgment and submitted that the facts of this case is different from the facts of Yogendra Pratap Singh v. Savitri Pandey (supra) in the sense that in Yogendra Pratap Singh it was not specifically pleaded by the complainant of that case that on a specific date the notice was received by the drawer of the cheque but in this case the complainant has herself stated that the notice was received on 14.06.2014 and having done so, this being a criminal proceeding, the appellant cannot escape discharging the burden of proving the said essential fact that the notice has been received on 14.06.2014 by the drawer of the cheque for establishing the charge for the offence punishable under section 138 of the N.I. Act against the appellant-accused person and further as the complainant has failed to establish her capacity to lend the sum of Rs.13,00,000/- when she is a mere house wife without any source of income and in the absence of any evidence in record that she borrowed any money, the learned trial court has rightly dismissed the appeal. Hence, it is submitted that special leave ought not be given to the appellant to present the appeal.

6. Having heard the submission made at the Bar and after going through the evidence in record, it is crystal clear that it is categorically stated by the complainant that on 14.06.2014 notice was served upon the appellantaccused persons but there is no evidence either oral or documentary to establish

the fact that the notice has been received by the accused person on 14.06.2014 and as rightly observed by the learned court below that the complainant has also failed to establish her capacity to lend Rs.13,00,000/- to the accused person.

7. Under such circumstances, this Court is of the considered view that this is not a fit case where special leave to present this appeal under section 378(4) be granted.

8. Accordingly this interlocutory application being without any merit is dismissed

9. Consequently this Acquittal Appeal (C) No. 16 of 2018 is also dismissed.

(Anil Kumar Choudhary, J.)

High Court of Jharkhand, Ranchi Dated the 24th January, 2019 AFR/ Sonu-Gunjan/-