Case Note & Summary
The appellant, Rambhau Tulsiram Bhusari, filed a criminal complaint under Section 138 of the Negotiable Instruments Act, 1881 against the respondent, Assanand Dhanumal Vensiani, alleging dishonour of a cheque for Rs. 1 lakh issued towards repayment of a hand loan. The cheque was dishonoured due to insufficient funds. A legal notice dated 23-05-2006 was sent to the accused, which was deemed served constructively. The accused failed to make payment within 15 days, and the complainant filed the complaint on 15-06-2006. The trial court acquitted the accused on the ground that the complaint was filed prematurely, i.e., before the expiry of 15 clear days from the deemed service of notice. The complainant appealed to the High Court. The key legal issues were: (1) the correct date of deemed service of notice; (2) whether the trial court could examine the issue of premature filing at the final stage; and (3) whether the relevant date for determining compliance is the date of filing or the date of taking cognizance. The appellant argued that the complaint was not premature because the Magistrate took cognizance on 28-08-2006, which was well after the 15-day period. The respondent contended that the filing itself was premature. The High Court, relying on the Supreme Court judgment in Yogendra Pratap Singh v. Savitri Pandey, (2014) 10 SCC 713, held that the crucial date is when the Magistrate takes cognizance, not the date of filing. Since cognizance was taken on 28-08-2006, which was beyond 15 days from the deemed service of notice, the complaint was not premature. The Court allowed the appeal, set aside the acquittal, and remanded the matter to the trial court for fresh decision on merits.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Premature Filing - Section 138, Negotiable Instruments Act, 1881 - The issue was whether a complaint filed before the expiry of 15 days from deemed service of notice is maintainable. The Court held that the crucial date is when the Magistrate takes cognizance, not the date of filing. If cognizance is taken after the 15-day period, the complaint is not premature. The Court relied on Yogendra Pratap Singh v. Savitri Pandey, (2014) 10 SCC 713, and overruled the trial court's acquittal based on premature filing. (Paras 5-10) B) Negotiable Instruments Act - Deemed Service of Notice - Section 138, Negotiable Instruments Act, 1881 - The Court considered the date of deemed service of notice. The notice was sent by registered post and deemed served under Section 27 of the General Clauses Act, 1897. The Court did not specify the exact deemed date but noted that the complaint was filed on 15-06-2006 and cognizance was taken on 28-08-2006, which was beyond 15 days from any reasonable deemed service date. (Paras 4-6)
Issue of Consideration
Whether the filing of a complaint under Section 138 of the Negotiable Instruments Act, 1881 before the expiry of the 15-day notice period renders the complaint liable to be dismissed, and what is the relevant date for determining compliance with the statutory notice period.
Final Decision
The appeal is allowed. The judgment of acquittal passed by the trial court is set aside. The matter is remanded to the trial court for fresh decision on merits in accordance with law.
Law Points
- Section 138 Negotiable Instruments Act
- 1881
- premature filing of complaint
- cognizance date
- deemed service of notice
- 15-day notice period
