RAJANIKANT MANI TRIPATHI Vs. STATE OF U. P.

JUDGEMENT

(1.) This criminal revision under Section 397/401 of Cr.P.C. has been filed by Rajanikant Mani Tripathi, against State of U.P. and another, against judgment and order dated 7.2.2020, passed by Prescribed Authority/Additional Court (Negotiable Instrument Act), Gorakhpur, whereby Criminal Case No. 473 of 2018, under Section 138 of N.I. Act, P.S. Kotwali, District Gorakhpur, was dismissed, with this contention that learned trial Judge failed to appreciate facts placed on record. Order dated 7.2.2020 was against the provision of N.I. Act. A notice to opposite party No. 2 was sent on 18.12.2017 and as per provision of Section 27 of General Clauses Act, presumption of its service, in case of its non return back to sender, is to be drawn after thirty days and after thirty days, it may be presumed that notice has been served upon the addressee and if within fifteen days of same, amount is not paid, then cause of action arises. Applicant-revisionist has sent notice of dishonour of cheque to opposite party No. 2, drawer of cheque on 18.12.2017, it was a registered notice which had yet not been received back and presumption of service may be taken by the Court on 17.1.2018 i.e. after thirty days. This complaint for offence punishable under Section 138 of N.I. Act was filed before Court on 15.2.2018, which is withing thirty days form the date of arising of cause of action on 17.1.2018. But the Court failed to consider above provision of General Clauses Act and thereby rejected complaint on the ground of delayed filing. It was an order apparently erroneous on the face of it. Hence, this revision with prayer for setting aside impugned judgment and order dated 7.2.2020 of trial Court of Additional Court No. 1(Negotiable Instrument Act) Gorakhpur, in complaint case No. 473 of 2018, under Section 138 of N.I. Act, Rajanikant Mani Tripathi Vs. Kiran Yadav and and remit the matter to Court below for further hearing in the case.

(2.) Learned counsel for the revisionist argued that as per Section 138 of N.I. Act- 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--

(3.) Hon'ble Apex Court in Kaushalya Devi Massand vs Roopkishore Khore, 2011 AIR(SC) 2566, has observed that the gravity of a complaint under the Negotiable Instruments Act cannot be equated with an offence under the provisions of the Indian Penal Code or other criminal offences. An offence under Section 138 of the Negotiable Instruments Act, 1881, is almost in the nature of a civil wrong which has been given criminal overtones. The notice was issued by way of registered post and its presumption of service under Section 27 of General Clauses Act may be after thirty days but the trial Judge has presumed service within 2 to 3 days on the ground that drawer and drawee of cheque, both were resident of city Gorakhpur. Hence, presumption of service is to be within 2 to 3 days and on the basis of this presumption, the complaint has been held to be of time barred. Accordingly, prosecution has been dismissed. Hence, this revision.