MANSUKHBHAI BADHABHAI BORICHA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) PRESENT application under Section 378(4) of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC") for Leave to Appeal against the impugned judgment and order of acquittal dated 10.04.2012 passed by the learned Additional Chief Judicial Magistrate, Bhavnagar in Criminal Case No.4383 of 2000 by which the learned Additional Chief Judicial Magistrate, Bhavnagar has acquitted the respondent No.2 herein original accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "NI Act").

(2.) FACTS leading to the present Criminal Miscellaneous Application for Leave to Appeal / Appeal in nutshell are as under:

(3.) HEARD Shri Devnani, learned advocate appearing on behalf of the applicant and Shri L.R. Poojari, learned Additional Public Prosecutor appearing on behalf of the respondent No.1 State of Gujarat. It is not in dispute and it is an admitted position that the cheque was deposited on 24.06.1999 and 30.08.1999 and the intimation of the Bank with respect to the dishonour of the cheque was given to the complainant on 30.08.1999. It is also an admitted position that the complainant issued and served a statutory notice by RPAD upon the accused on 10.09.1999 and thereafter, again issued the statutory notice on 01.03.2000 and thereafter, considering the subsequent notice as cause of action as provided under Section 138 of the NI Act, the complainant has filed complaint on 26.05.2000 against the accused for the offence under Section 138 of the NI Act. As per Section 142 of the NI Act, 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; and 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. Considering Section 138, more particularly, clause (c) of the proviso to Section 138 of the NI Act, in a case where 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 validity, whichever is earlier, the payee or 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 the information by him from the Bank regarding the return of the cheque as unpaid; and 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 said notice. Thus, on fair reading of Section 138 of the NI Act, a complainant is required to serve a statutory notice as per clause (b) of proviso to Section 138 within a period of 30 days with respect to information by him from the Bank regarding the return of the cheque as unpaid and when within 15 days from the receipt of the said statutory notice if the accused does not pay the cheque amount, in that case only, it can be said that the cause of action has arisen in favour of the complainant to file the complaint against the accused for the offence under Section 138 of the NI Act. Therefore, after the service of the statutory notice as provided under clause (b) of proviso to Section 138, if within a period of 15 days, the accused does not make the payment of cheque amount, the complainant can file the complaint within a period of one month subject to applying by the complainant to condone the delay in filing the complaint. In the present case, admittedly, no such request to condone the delay has been made. Admittedly, within a period of 30 days after completion of 15 days of service of notice upon the accused, complainant has not filed the complaint. Under the circumstances, no illegality has been committed by the learned Additional Chief Judicial Magistrate in dismissing the complaint and/or acquitting the accused for the offence under Section 138 of the NI Act on the ground that the complaint is barred by law of limitation as provided under the provisions of NI Act.