BISWAJIT DASH Vs. TRILOCHAN BEHERA

JUDGEMENT

(1.) The petitioner Biswajit Dash was the complainant in a case under section 138 of the Negotiable Instruments Act, 1881 (hereinafter 'N.I. Act'). The complaint petition was filed before the learned J.M.F.C., Tigiria vide 1.C.C. No.105 of 2009 against the opposite party Trilochan Behera who faced trial in the said Court and was found guilty under section 138 of the N.I. Act and sentenced to undergo simple imprisonment for a period of one year and was also directed to pay a sum of Rs.5,00,000/- (rupees five lakhs only) to the petitioner as compensation under section 357(3) of Cr.P.C., in default of payment of compensation, to undergo simple imprisonment for a period of three months.

(2.) The opposite party preferred an appeal in the Court of Session which was heard by the learned Addl. Sessions Judge, Athagarh in Criminal Appeal No.07 of 2015 and the learned Appellate Court vide impugned judgment and order dated 14.12015 allowed the appeal and set aside the judgment and order of conviction passed by the learned J.M.F.C., Tigiria. The ground of acquittal is that after the intimation regarding dishonour of cheque was received from the bank by the complainant on 26.06.2009, the advocate's notice sent by the complainant through registered post returned back to the sender on 07.07.2009 with last endorsement of the postman till dated 03.07.2009 and thereafter the complaint petition was filed on 09.07.2009 and the cognizance of offence was taken on the very day of filing of the complaint petition. It was held that the procedure laid down under section 138 of the N.I. Act enumerates that fifteen days time to be given to the accused for repayment of the cheque amount and if the accused fails to pay the cheque amount within the said period then the complainant has remedy to take shelter in the Court of law after lapse of fifteen days from the date of receipt of the notice by the accused. It was further held that it is a mandate of statute provided in the Act and filing of complaint violating the statutory provision amounts to no complaint in the eye of law.

(3.) In case of Yogendra Pratap Singh v. Savitri Pandey & Another reported in (2014) 59 Orissa Criminal Reports (SC) 577, where the question came up for consideration as to whether cognizance of offence punishable under section 138 of the N.I. Act can be taken on the basis of a complaint filed before the expiry of the period of fifteen days stipulated in the notice required to be served upon the drawer of the cheque in terms of section 138(c) of the Act, the Hon'ble Supreme Court answered it in the negative. It was further held that the complaint under section 138 of the N.I. Act filed before the expiry of fifteen 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. After taking note of the decision in the case of Yogendra Pratap Singh (supra), I have held in the case of Ranjan Kumar Senapati v. State of Orissa reported in (2017) 66 Orissa Criminal Reports 539 that an opportunity has been given by the legislature itself by the providing a notice to the drawer and for payment of the amount within fifteen days of the receipt of the said notice and if he fails to comply with clause (c) of section 138 of the N.I. Act, filing of a complaint within one month from the date of cause of action is also provided under sub-section (b) of section 142 of the N.I. Act. It was further held that the drawer of the cheque has got an opportunity to know in advance before filing the complaint that the cheque was dishonoured for a particular reason upon receipt of the notice from the payee or the holder of the cheque and thereby making payment of the cheque amount to the payee so as to prevent initiation of any complaint case proceeding against him. The penal provisions have to be construed strictly and not liberally. A pre-mature complaint cannot be the foundation of a valid prosecution.