In a significant legal development, the Supreme Court of India has delivered a landmark judgment regarding the restoration of a complaint under Section 138 of the Negotiable Instruments Act. The case involves two cheques issued by the appellant, leading to revisional proceedings initiated by the second respondent. The appellant faced challenges in filing the complaint within the statutory period, which was successfully remedied through this groundbreaking judgment by the apex court.
Facts
- The dispute revolves around two cheques issued by the appellant which were returned unpaid
- The second respondent initiated revisional proceedings which were rejected
- The appellant received a memo regarding the dishonoured cheques on 4 December 2015
- Legal notices were issued regarding the dishonour of the cheques
- CJM issued summons to the second respondent upon taking cognizance of the offence under Section 138 of the Negotiable Instruments Act
- Delay in filing the complaint was condoned by the Magistrate in Begusarai
- Recourse to the High Court under Section 482 CrPC taken by the learned Single Judge.
- Complaint under Section 138 deemed not filed within the statutory period of thirty days prescribed under Section 138.
- Resulting in quashing of the proceedings.
- Reference made to the decision of the three judge Bench in MSR Leathers case.
- In MSR Leathers case, re-presentation of the cheque led to a fresh notice being considered within the legal ambit.
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Arguments
- The second legal notice dated 26 February 2016 was sent beyond thirty days of the receipt of the memo of dishonour on 4 December 2015, making it an invalid basis for a criminal complaint.
- The complaint could only have been instituted based on the first legal notice dated 31 December 2015, which was within thirty days of the dishonour memo.
- The complaint lodged on 11 May 2016 was beyond the stipulated period from the date of issuance of the first notice.
- The CJM had only condoned the delay for the period after 6 April 2016 following the issuance of the second notice.
- As per the argument presented by learned Senior Counsel, successive notices are permissible under Section 138, as established in the case of MSR Leathers v. S Palaniappan.
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Analysis
- The appellant provided sufficient cause for seeking condonation of delay in instituting the complaint.
- No acknowledgment of the notice was furnished despite repeated requests to the postal department.
- The CJM condoned the delay based on the cause shown by the appellant from 6 April 2018.
- The requirement of proviso (b) to Section 138 was fulfilled within thirty days of the receipt of the memo of dishonour.
- The High Court referred to the presumption that the first notice would be deemed served if dispatched in the ordinary course.
- The appellant indicated adequate reasons for not instituting the complaint within the stipulated period in paragraphs 7 and 8 of the complaint.
- The cause of action for the complaint under Section 138 was considered to be the first notice dated 31 December 2015.
- The complaint was instituted on 11 May 2016 as per Section 142(1) requirement.
- The appellant issued a legal notice on 31 December 2015, followed by a second notice on 26 February 2016.
- The impugned judgment of the High Court is unsustainable based on the view taken.
- Sufficient cause was shown by the appellant for condoning the delay in instituting the complaint.
- The delay was justified considering the issuance of the first legal notice dated 31 December 2015 as the basis of the complaint.
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Decision
- The complaint has been restored to the file of the trial court.
- The appeal has been allowed.
- The order passed by the learned Single Judge has been set aside.
Case Title: BIRENDRA PRASAD SAH Vs. THE STATE OF BIHAR
Case Number: Crl.A. No.-000868-000868 / 2019
