# Vijay Kumar Mishra v. State of U.P. & Anr

- **Citation:** Application U/S 482 Cr.P.C. No. 12953 of 2015
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-06
- **Case number:** Application U/S 482 Cr.P.C. No. 12953 of 2015
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijay-kumar-mishra-v-state-of-u-p-anr-46196
- **Pages:** 15

## Headnote

Criminal Law - Negotiable Instruments Act
(26 of 1881) - Section 138 Proviso (c)-
Section142-Cause of Action - date of
service of notice - one of main ingredient -
from which the date the cause of action
arises - where the drawer of the cheque
fails to make the payment - within 15 days
- of the receipt of the legal demand notice
- cause of action arises for prosecuting
drawer for the offence punishable u/s 138
- complaint must be made within one
month of the date on which the cause of
action arises i.e. within one month of the
date of service of notice

In summoning order Magistrate only recorded
the date on which the alleged cheques were
dishonoured i.e. 3rd July, 2014 & date of legal
3-5 All. Vijay Kumar Mishra Vs. State of U.P. & Anr.
1675
notice i.e. 14th July, 2014, which was sent to
the applicant - but not recorded the date on
which the legal notice has been served - from
which the date the cause of action would arise -
Held - one of main ingredient i.e. date of service
of notice - from which the date the cause of
action arises is completely missing - summoning
order quashed

Application allowed (E-5)

List of cases cited :

1.Jugesh Sehgal Vs Shamsher Singh Gogi
(2009) 14 SCC 683

2.Yogendra Pratap Singh Vs Savitri Pandey &
anr. (2014) 14 SCC 812

3.N. Harihara Krishnan Vs J. Thomas (2018) 13
SCC 663

4.D. Vinod Shivappa Vs Nanda Belliappa (2006)
6 SCC 456

## Text

_Characters 0–39,861 of 52,620. This is a partial read: ask again with offset=39861 for what follows._

1674 INDIAN LAW REPORTS ALLAHABAD SERIES
himself clearly speak that there should be
nexus of the act allegedly done by the
accused with his official duty and if it is not
the case then no protection can be granted
to the accused. In the present case, it is
found that it cannot be held to fall in
official duty of the applicant to eliminate
the deceased, if he had committed any
wrong then judicial process ought to have
been resorted to by lodging F.I.R. under the
appropriate sections, but this Court finds
that question of granting protection under
Section 197 Cr.P.C. does not arise,
however, it is irrelevant because already
prosecution sanction has been granted in
this case by the Government. It has also to
be made clear here that investigation in this
case was handed over to C.B.I. pursuant to
the order of Hon'ble Suprme Court
therefore Hon'ble Apex Court was fully
seized with the matter and a query was
made from the learned counsel for the
applicant as to why he did not approach the
Hon'ble Apex Court when he was feeling
aggrieved that this sanction has been
granted subsequently by reviewing earlier
order. If there was any such grievance to
him he could have approached, the Hon'ble
Apex Court and mentioned in Writ Petition
(Crl.) No. 93 of 1994, which has been
disposed
of
also
vide
order
dated
25.7.2005, in which Hon'ble Apex Court
has passed following order:-

In view of the counter affidavit
filed on behalf of the State informing this
Court that the sanction has now been
granted for prosecution of accused no. 1 to
accused no. 6, no further orders are called
for. The CRLMP stands disposed of.

25. It appears from the order of
Hon'ble Apex Court as well that it has
disposed of the matter when it found that
sanction for prosecution has already been
accorded, therefore, I find that no ground to
allow this application and the same
deserves to be rejected and accordingly,
rejected.

26. Interim order stands vacated
forthwith.
----------
(2020)03-05ILR A1674
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.02.2020

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application U/S 482 Cr.P.C. No. 12953 of 2015

Vijay Kumar Mishra ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Ronak Chaturvedi

Counsel for the Opposite Parties:
A.G.A., Sri Anand Priya Singh, Sri Ashok
Kumar Mishra, Sri Nawal Kishore Deo, Sri
Rakesh Chandra Tiwari

Criminal Law - Negotiable Instruments Act
(26 of 1881) - Section 138 Proviso (c)-
Section142-Cause of Action - date of
service of notice - one of main ingredient -
from which the date the cause of action
arises - where the drawer of the cheque
fails to make the payment - within 15 days
- of the receipt of the legal demand notice
- cause of action arises for prosecuting
drawer for the offence punishable u/s 138
- complaint must be made within one
month of the date on which the cause of
action arises i.e. within one month of the
date of service of notice

In summoning order Magistrate only recorded
the date on which the alleged cheques were
dishonoured i.e. 3rd July, 2014 & date of legal
3-5 All. Vijay Kumar Mishra Vs. State of U.P. & Anr.
1675
notice i.e. 14th July, 2014, which was sent to
the applicant - but not recorded the date on
which the legal notice has been served - from
which the date the cause of action would arise -
Held - one of main ingredient i.e. date of service
of notice - from which the date the cause of
action arises is completely missing - summoning
order quashed

Application allowed (E-5)

List of cases cited :

1.Jugesh Sehgal Vs Shamsher Singh Gogi
(2009) 14 SCC 683

2.Yogendra Pratap Singh Vs Savitri Pandey &
anr. (2014) 14 SCC 812

3.N. Harihara Krishnan Vs J. Thomas (2018) 13
SCC 663

4.D. Vinod Shivappa Vs Nanda Belliappa (2006)
6 SCC 456

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. Heard Sri Ronak Chaturvedi,
learned counsel for the applicant, Mr.
Anand Priya Singh, learned counsel for
opposite party no.2 and Mr. Prashant
Kumar, learned A.G.A. for the State
assisted by Mr. P.K. Sahi, State Law
Officer.

2. Learned counsel for the applicant,
learned counsel for opposite party no.2 and
the learned A.G.A. agree that the present
application may be disposed of at this stage
without calling for further affidavits in
view of the order proposed to be passed
today.

3. By means of this 482 Cr.P.C.
application, the applicant has questioned
order
dated
16th
September,
2014
summoning the applicant, order dated 21st
March, 2015 issuing non-bailable warrant
against
him
as
well
as
the
entire
proceedings of the Complaint Case No.
1546 of 2014 (Om Construction Vs. M/s.
Komal Construction), under Section 138 of
the Negotiable Instruments Act, 1881
(hereinafter referred to as the "N.I. Act"),
Police Station-Obra, District-Sonbhadra,
pending in the Court of .

4. The facts, as borne out from the
complaint made by opposite party no.2
against the applicant on 13th August, 2014
under Section 138 N.I. Act in the Court of
Additional
Chief
Judicial
Magistrate,
Sonebhadra, are as follows:

The company of applicant, in the name
and style of "M/s. Komal Construction,
under various work orders and tenders of
Railaway and other departmnts, extensively
undertakes various types of constructions
such as pool construction, brick works etc.
on huge basis and all the works and other
arrangements are done by the applicant.
Since the company got two work orders
from M/s. Kalendi Raiwaly Construction
(Engineering Ltd.) and for completion of
the said work on time and on speed, which
requires a lot of labor, resources, machines,
etc. to speed up the work to complete on an
adjusted basis. To fulfill all those works,
the applicant needed to assign work to
another person or firm and pay their
expenses according to labor under which
the applicant made a proposal to opposite
party no. 2. to do the above work speedily
and also assured that the applicant has more
big tasks and his client talked him to
complete the said work quickly and in lieu
of this, the applicant requested opposite
party no.2 for arranging machine, labor,
capital and other expenses and also assured
him to give work order of his company.
Accepting the proposal, the applicant,
opposite party no.2 agreed to work with
1676 INDIAN LAW REPORTS ALLAHABAD SERIES
him. Opposite party no.2 requested the
applicant that because there are two
marriages in his house, he would arrange
the machine, money and everything but he
would reach on the spot rarely. Being busy
in the said marriages, opposite party no.2
could hardly reach the spot but he had
arranged machine, money and everything
whichever
was
required
as
per
his
assurance. In that way opposite party no.2
spent lot of money and labor on trusting the
applicant and the opposite party no.2 also
got a written contract from the applicant
and he had worked under those contracts.
In this way, opposite party no.2 started
working with the applicant under contracts
given by the applicant and gave his
machine, labor and money. After being free
from marriages, when he came to the site of
applicant, he came to know that the
applicant had taken money and labor from
other people like him and those people
were very angry and they were threatening
the applicant to return their money. When
opposite party no.2 asked the applicant as
to why he has not given their money, he
told opposite party no.2 that in case he is
interested in working with him, he may do
the same, otherwise get away with his
money. When opposite party no.2 asked the
applicant to refund the expenditure incurred
in aforesaid works taken by him, he started
bothering him by promising to refund the
same by tomorrow or day-after tomorrow.
In spite of that, the applicant continued to
lure him by showing him income tax return
worth of 5-7 crores and a turnover of 50-60
crores. Ultimately after enormous pressure
exerted by opposite party no.2, the
applicant told him to make a statement of
account of money whichever has been
spend by him and at the end of February
2014, he accounted for about Rs. 15 crores
on the applicant, which he has also
admitted in the presence of other sharers of
his company and some others. To refund
the same, out of total amount of Rs. 15
crores, for paying Rs. 50 lacs, the applicant
has given some cheques to opposite party
no.2 and he has also assured the opposite
party no.2 to refund all the money on
different dates in future. When Cheque no.
002107 dated 15th June, 2014 for a sum of
Rs. 12,00,000/-, Cheque no. 002108 dated
15th June, 2014 for a sum of Rs.
12,00,000/- and Cheque no. 002109 dated
15th June, 2014 for a sum of Rs.
12,00,000/- (i.e. total Rs. 36,00,000/-),
which were given by the applicant, has
been presented on 3rd July, 2014 by
opposite party no.2 for encashment in
Allahabad Bank, Branch-Obera, where
account of opposite party no. 2 bearing
Account No. 5018365077 is maintained, on
the same day the same has been returned as
dishonoured with a return memo showing
"insufficient balance".

5. The said complaint supported by an
affidavit has been registered as Complaint
Case No. 1546 of 2014 (Om Construction
Vs. M/s. Komal Construction), under
Section 138 of the Negotiable Instruments
Act, 1881 (hereinafter referred to as the
"N.I. Act"), Police Station-Obra, DistrictSonbhadra. After recording statement of
the complainant under Section 200 Cr.P.C,
the court below has passed an order dated
16th September, 2014 and when the
applicant could not appear before the court
below, the court below has passed an order
dated 21st March, 2015 issuing nonbailable warrant against the applicant. It is
against these two orders that the present
application under Section 482 Cr.P.C. has
been filed.

6. On the matter being taken up, a
Coordinate Bench of this Court passed
following order:
3-5 All. Vijay Kumar Mishra Vs. State of U.P. & Anr.
1677

"Heard learned counsel for the
applicant and leaned AGA.

Learned counsel for the applicant
has submitted that the complaint as well as
the affidavits filed in support of the
complaint is completely silent about any
notice or its service upon the applicant as
required under Section 138 of Negotiable
Instruments Act, 1881.

Submissions made by learned
counsel for the applicants, prima facie,
appear to have substance and a prima facie
case for grant of interim relief is made out.

Issue notice to opposite party no.
2 returnable within four weeks. He may file
counter affidavit within the same period
after receipt of notice. Rejoinder affidavit,
if any, may be filed within two weeks
thereafter.

List this case after expiry of
aforesaid period. Till the next date of
listing no coercive steps shall be taken
against the applicant only in Complaint
Case No. 1546 of 2014, under Section 138
of
N.
I.
Act,
P.S.
Obra,
District
Sonbhadra."

7. Learned counsel for the applicant
submits
that
before
summoning
the
applicant, the court below has not recorded
statements of witnesses of opposite party
no.2 except him, which is per se illegal.
The applicant is the Director/Partner of
M/s.
Komal
Construction.
The
said
company is engaged in construction work.
It is no doubt true that the applicant and the
complainant were carrying on business
transaction but the applicant has already repaid some amount to the complainant. It is
further submitted that in the complaint, the
complainant/opposite party no.2 has only
given the details of the cheques and the
date of its dishonour. In the complaint, it is
nowhere alleged that any legal notice was
given by the complainant/opposite party
no.2 through his advocate to the applicant
nor anything has been said about the receipt
of the same to the applicant, which are
necessary and essential ingredients as per
Section 138 N.I. Act. It is further submitted
by the learned counsel for the applicant that
Section 138 N.I. Act very clearly provides
that the offence would be made out, if the
payee or the holder in due course of the
cheque, makes a demand for the payment
of the said amount of money by giving a
legal notice in writing, to the drawer of the
cheque within 15 days of the receipt of the
information received by him by the Bank
qua the return of the cheque as unpaid. In
the complaint, opposite party no.2. has only
mentioned the date on which he has
received information from the Bank and it
has nowhere been mentioned as how he
made a demand for the payment of the said
amount of money. In absence of necessary
and essential ingredients of the alleged
offence, the complaint itself becomes void
and the proceedings initiated on such a
complaint is not at all maintainable. As
such the same are liable to be quashed by
this Court. Learned counsel for the
applicant further submits that even the
statement of opposite party no.2 which has
been given on an affidavit, does not depict
the allegations of sending notice or making
a demand from the applicant. The statement
like the complaint is absolutely silent about
the factum of sending legal notice and
failure on the part of the applicant to repay
the amount, which is necessary ingredient
for constituting an offence under Section
138 N.I. Act. The court below only on the
basis of such complaint and statement of
the complainant has committed error in
passing the summoning order against
applicant, which is also illegal. It is further
submitted that in the impugned order
passed by the court below dated 16th
September, 2014, it has been mentioned
1678 INDIAN LAW REPORTS ALLAHABAD SERIES
that cheques were dishonoured on 3rd July,
2014 and the legal notice, which was sent
on 14th July, 2014. However, the said legal
notice depicts that the said notice is a
registered legal notice sent by the opposite
party no.-2 through his advocate, namely,
Ravindra Nath Pandey on 14th July, 2014.
Even otherwise, the purported notice is
vague and does not clearly depict the exact
amount, which the applicant had to pay to
the complainant. Neither in the complaint
nor in the statement of the complainant
recorded under Section 200 Cr.P.C., it has
been mentioned as to on what date, the said
legal notice has been received by the
applicant. It is next submitted that even
assuming without admitting that any such
notice has been sent on 14th July, 2014 by
registered post then, it can be inferred that
the same has been delivered as per the
period mentioned under Section 27 of the
General Clauses Act, which mentions a
period of 30 days. It is thus, submitted that
if 30 days are to be calculated from 14th
July, 2014, then it can be said that the said
notice was delivered on 13th August, 2014,
which further gives 15 days time to the
applicant to repay the amount. If this 15
days period is added to 13th August, 2014,
then it would mean that the complaint
could not have been filed before 28th
August, 2014 but in the present case the
opposite party no.2 has filed the complaint
on 13th August, 2014, which makes the
complaint premature because no complaint
can be maintained against the drawer of a
cheque before the expiry of 15 days from
the date of receipt of the notice under
Proviso (c) to Section 138 N.I. Act,
because the drawer/accused cannot be said
to have committed any offence until then
nor there is any accrual of cause of action
for filing complaint under Section 138 N.I.
Act. Any complaint filed before the expiry
of the said 15 days is non est. Hence no
cognizance of an offence can be taken on
the basis of such non est complaint. In
support of his aforesaid submissions,
learned counsel for the applicant has relied
upon following judgments of the Apex
Court:

i. Jugesh Sehgal Vs. Shamsher
Singh Gogi, reported in (2009) 14 SCC
683;

ii. Yogendra Pratap Singh Vs.
Savitri Pandey & Another reported in
(2014) 14 SCC 812;

iii. N. Harihara Krishnan Vs. J.
Thomas reported in (2018) 13 SCC 663.

8. Learned counsel for the applicants,
therefore,
submitted
that
the
present
criminal proceedings initiated against the
applicant are an abuse of the process of the
Court and law. On the cumulative strength
of the aforesaid submissions, it is submitted
by learned counsel for the applicants that
the proceedings of the above mentioned
complaint case are liable to be quashed by
this Court.

9. Per contra, Mr. Prashant Kumar,
learned A.G.A. for the State and Mr. Anand
Priya Singh, learned counsel for opposite
party no.2 have opposed the submissions
made by the learned counsel for the
applicant by contending that there is no
illegality or infirmity in the order of
summoning of the applicant passed by the
concerned Magistrate. Learned counsel for
the State and the learned counsel for
opposite party no.2, therefore, submits that
the present application is liable to be
dismissed.

10. I have considered the submissions
made by the learned counsel for the
applicants and have gone through the
records of the present application.
3-5 All. Vijay Kumar Mishra Vs. State of U.P. & Anr.
1679

11. Before expressing any opinion on
the merits of the case set up by both the
parties,
it
would
be
worthwhile
to
reproduce Sections 138, 139 & 142 of the
Negotiable Instrument Act, which are
quoted herein-below:

138. Dishonour of cheque for
insufficiency, etc., of funds in the account. --
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 19 [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--

(a) 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 its validity, whichever is earlier;

(b) the payee or the 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, 20 [within thirty days] of
the receipt of information by him from the bank
regarding the return of the cheque as unpaid;
and

(c) 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 receipt of the said notice.

Explanation.-- For the purposes of
this section, "debt or other liability" means a
legally enforceable debt or other liability.]

139. Presumption in favour of
holder.--It shall be presumed, unless the
contrary is proved, that the holder of a
cheque received the cheque of the nature
referred to in section 138 for the discharge,
in whole or in part, of any debt or other
liability.

"142 Cognizance of offences. --
Notwithstanding anything contained in the
Code of Criminal Procedure, 1973 (2 of
1974)--

(a) 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;

(b) 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: [Provided that
the cognizance of a complaint may be
taken by the Court after the prescribed
period, if the complainant satisfies the
Court that he had sufficient cause for not
making a complaint within such period.]

(c) no court inferior to that of a
Metropolitan Magistrate or a Judicial
Magistrate of the first class shall try any
offence punishable under section 138."

12. From the above, it is manifestly
clear that a dishonour would constitute an
offence only if the cheque is returned by
the bank ''unpaid' either because the amount
of money standing to the credit of the
drawer's account is insufficient to honour
the cheque or that the amount exceeds the
amount arranged to be paid from that
account by an agreement with that bank.
Now, for an offence under Section 138 NI
Act, it is essential that the cheque must
have been issued in discharge of legal debt
1680 INDIAN LAW REPORTS ALLAHABAD SERIES
or liability by accused on an account
maintained by him with a bank and on
presentation of such cheque for encashment
within its period of validity, the cheque
must have been returned unpaid. The payee
of the cheque must have issued legal notice
of demand within 30 days from the receipt
of the information by him from the bank
regarding such dishonor and where the
drawer of the cheque fails to make the
payment within 15 days of the receipt of
the aforesaid legal demand notice, cause of
action under Section 138 NI Act arises.

13.

From
the
Chapter
XVII
comprising Sections 138 to 142 of the
Negotiable Instruments Act, which was
introduced in statute by Act 66 of 1988, it
is also apparently clear that the object
underlying the provision contained in the
said Chapter was aimed at inculcating faith
in the efficacy of banking operations and
giving credibility to negotiable instruments
in business and day to day transactions by
making dishonour of such instruments an
offence. A negotiable instrument whether
the same is in the form of a promissory
note or a cheque is by its very nature a
solemn document that carries with it not
only a representation to the holder in due
course of any such instrument but also a
promise that the same shall be honoured for
payment. To that end Section 139 of the
Act raises a statutory presumption that the
cheque is issued in discharge of a lawfully
recoverable debt or other liability. This
presumption is no doubt rebuttable at trial
but there is no gain saying that the same
favours the complainant and shifts the
burden to the drawer of the instrument (in
case the same is dishonoured) to prove that
the instrument was without any lawful
consideration. It is also noteworthy that
Section 138 while making dishonour of a
cheque
an
offence
punishable
with
imprisonment and fine also provides for
safeguards to protect drawers of such
instruments where dishonour may take
place for reasons other than those arising
out of dishonest intentions. It envisages
service of a notice upon the drawer of the
instrument calling upon him to make the
payment covered by the cheque and
permits prosecution only after the expiry of
the statutory period and upon failure of the
drawer to make the payment within the said
period.

14. Under Section 138 of the Act,
where a cheque issued by the drawer in the
discharge of any debt or any other liability
is returned by the bank unpaid, because the
amount standing to the credit of that
account is insufficient to honour the
cheque, the said person is deemed to have
committed an offence. This is subject to
proviso to Section 138 which provides that
the cheque should have been presented to
the bank within the period of six months
from the date of which it is drawn or within
the period of its validity, whichever is
earlier. The payee must also make a
demand for the payment of the said amount
by giving a notice in writing to the drawer
of the cheque within 30 days of the receipt
of the information by him from the bank
regarding the return of the cheque unpaid.
If despite this demand, the drawer fails to
make the payment within fifteen days of
the receipt of the notice, a cause of action
arises for prosecuting him for the offence
punishable under Section 138 of the Act.
Section 142 provides that the court shall
take cognizance of an offence punishable
under Section 138 of the Act upon receipt
of a complaint in writing made by the
payee or, as the case may be, the holder in
due course of the cheque. Such complaint
must be made within one month of the date
on which the cause of action arises under
3-5 All. Vijay Kumar Mishra Vs. State of U.P. & Anr.
1681
clause (c) of the proviso to Section 138.
However, discretion is given to the court to
take cognizance of the complaint even after
the prescribed period, if the complainant
satisfies the court that he had sufficient
cause for not making the complaint within
such period.

15. persons who purported to
discharge their liability by issuing cheques
without really intending to do so, which
was demonstrated by the fact that there was
no sufficient balance in the account to
discharge the liability. Apart from civil
liability, a criminal liability was imposed
on such unscrupulous drawers of cheques.
The prosecution, however, was made
subject to certain conditions. With a view
to avoid unnecessary prosecution of an
honest drawer of a cheque, or to give an
opportunity
to
the drawer
to
make
amendments, the proviso to Section 138
provides that after dis- honour of the
cheque, the payee or the holder of the
cheque in due course must give a written
notice to the drawer to make good the
payment. The drawer is given 15 days time
from date of receipt of notice to make the
payment, and only if he fails to make the
payment he may be prosecuted. The object
which the proviso seeks to achieve is quite
obvious. It may be that on account of
mistake of the bank, a cheque may be
returned despite the fact that there is
sufficient balance in the account from
which the amount is to be paid. In such a
case if the drawer of the cheque is
prosecuted without notice, it would result
in great in-justice and hardship to an honest
drawer. One can also conceive of cases
where a well intentioned drawer may have
inadvertently missed to make necessary
arrangements for reasons beyond his
control, even though he genuinely intended
to honour the cheque drawn by him. The
law
treats
such
lapses
induced
by
inadvertence
or
negligence
to
be
pardonable, provided the drawer after
notice makes amendments and pays the
amount within the prescribed period. It is
for this reason that clause (c) of proviso to
Section 138 provides that the section shall
not apply unless the drawer of the cheque
fails to make the payment within 15 days of
the receipt of the said notice. To repeat, the
proviso is meant to protect honest drawers
whose cheques may have been dishonoured
for the fault of others, or who may have
genuinely wanted to fulfill their promise
but
on
account
of
inadvertence
or
negligence failed to make necessary
arrangements for the payment of the
cheque. The proviso is not meant to protect
unscrupulous drawers who never intended
to honour the cheques issued by them, it
being a part of their modus operandi to
cheat unsuspecting persons.

16. If a notice is issued and served
upon the drawer of the cheque, no
controversy arises. Similarly if the notice is
refused by the addressee, it may be
presumed to have been served. This is also
not disputed. This leaves us with the third
situation where the notice could not be
served on the addressee for one or the other
reason, such as his non availability at the
time of delivery, or premises remaining
locked on account of his having gone
elsewhere etc. If in each such case the law
is understood to mean that there has been
no service of notice, it would completely
defeat the very purpose of the Act. It would
then be very easy for an unscrupulous and
dishonest drawer of a cheque to make
himself scarce for sometime after issuing
the cheque so that the requisite statutory
notice can never be served upon him and
consequently he can never be prosecuted.
There is good authority to support the
1682 INDIAN LAW REPORTS ALLAHABAD SERIES
proposition that once the complainant, the
payee of the cheque, issues notice to the
drawer of the cheque, the cause of action to
file a complaint arises on the expiry of the
period prescribed for payment by the
drawer of the cheque. If he does not file a
complaint within one month of the date on
which the cause of action arises under
clause (c) of the proviso to Section 138 of
the Act, his complaint gets barred by time.
Thus, a person who can dodge the postman
for about a month or two, or a person who
can get a fake endorsement made regarding
his non availability can successfully avoid
his prosecution because the payee is bound
to issue notice to him within a period of 30
days from the date of receipt of information
from the bank regarding the return of the
cheque as unpaid. He is, therefore, bound
to issue the legal notice which may be
returned with an endorsement that the
addressee is not available on the given
address.

17. Section 142 of the NI Act prescribes
the mode and so also the time within which a
complaint for an offence under Section 138 of
the NI Act can be filed. A complaint made
under Section 138 by the payee or the holder in
due course of the cheque has to be in writing
and needs to be made within one month from
the date on which the cause of action has arisen
under clause (c) of the proviso to Section 138.
The period of one month under Section 142(b)
begins from the date on which the cause of
action has arisen under clause (c) of the proviso
to Section 138. However, if the complainant
satisfies the Court that he had sufficient cause
for not making a complaint within the
prescribed period of one month, a complaint
may be taken by the Court after the prescribed
period. Now, since the answer to question (i) is
in the negative, this Court observes that the
payee or the holder in due course of the cheque
may file a fresh complaint within one month
from the date of decision in the criminal case
and, in that event, delay in filing the complaint
will be treated as having been condoned under
the proviso to clause (b) of Section 142 of the
NI Act. This direction shall be deemed to be
applicable to all such pending cases where the
complaint does not proceed further in view of
the answer to question (i). As this Court has
already held that a complaint filed before the
expiry of 15 days from the date of receipt of
notice issued under clause (c) of the proviso to
Section
138
is
not
maintainable,
the
complainant cannot be permitted to present the
very same complaint at any later stage. His
remedy is only to file a fresh complaint; and if
the same could not be filed within the time
prescribed under Section 142(b), his recourse is
to seek the benefit of the proviso, satisfying the
Court of sufficient cause.

18. In Jugesh Sehgal (Supra), which
has been relied upon by the learned counsel
for the applicant, the Apex Court in
paragraph-21 has observed as follows:

"21. Bearing in mind the above
legal position, we are of the opinion that it
was a fit case where the High Court, in
exercise of its (2008) 3 SCC 574
jurisdiction under Section 482 of the Code,
should have quashed the complaint under
Section 138 of the Act."

19. In Yogendra Pratap Singh
(Supra), which has also been relied upon
by the learned counsel for the applicant, in
paragraph nos. 36 to 41, the Apex Court
has observed as follows:

"36. A complaint filed before
expiry of 15 days from the date on which
notice has been served on drawer/accused
cannot be said to disclose the cause of
action in terms of clause (c) of the proviso
to Section 138 and upon such complaint
3-5 All. Vijay Kumar Mishra Vs. State of U.P. & Anr.
1683
which does not disclose the cause of action
the Court is not competent to take
cognizance. A conjoint reading of Section
138, which defines as to when and under
what circumstances an offence can be said
to have been committed, with Section
142(b) of the NI Act, that reiterates the
position of the point of time when the cause
of action has arisen, leaves no manner of
doubt that no offence can be said to have
been committed unless and until the period
of 15 days, as prescribed under clause (c)
of the proviso to Section 138, has, in fact,
elapsed. Therefore, a Court is barred in
law from taking cognizance of such
complaint. It is not open to the Court to
take cognizance of such a complaint merely
because on the date of consideration or
taking cognizance thereof a period of 15
days from the date on which the notice has
been served on the drawer/accused has
elapsed. We have no doubt that all the five
essential features of Section 138 of the NI
Act, as noted in the judgment of this Court
in Kusum Ingots & Alloys Ltd.19 and which
we have approved, must be satisfied for a
complaint to be filed under Section 138. If
the period prescribed in clause (c) of the
proviso to Section 138 has not expired,
there is no commission of an offence nor
accrual of cause of action for filing of
complaint under Section 138 of the NI Act.

37. We, therefore, do not
approve the view taken by this Court in
Narsingh Das Tapadia1 and so also the
judgments of various High Courts
following Narsingh Das Tapadia1 that
if the complaint under Section 138 is
filed before expiry of 15 days from the
date on which notice has been served
on the drawer/accused the same is
premature and if on the date of taking
cognizance a period of 15 days from the
date of service of notice on the
drawer/accused
has
expired,
such
complaint was legally maintainable
and, hence, the same is overruled.

38. Rather, the view taken by
this Court in Sarav Investment &
Financial Consultancy2 wherein this
Court held that service of notice in
terms of Section 138 proviso (b) of the
NI Act was a part of the cause of action
for
lodging
the
complaint
and
communication to the accused about the
fact of dishonouring of the cheque and
calling upon to pay the amount within
15 days was imperative in character,
commends itself to us. As noticed by us
earlier, no complaint can be maintained
against the drawer of the cheque before
the expiry of 15 days from the date of
receipt
of
notice
because
the
drawer/accused cannot be said to have
committed any offence until then. We
approve the decision of this Court in
Sarav
Investment
&
Financial
Consultancy and also the judgments of
the High Courts which have taken the
view following this judgment that the
complaint under Section 138 of the NI
Act filed before the expiry of 15 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.

39. Our answer to question (i)
is, therefore, in the negative.

40. The other question is that
if the answer to question (i) is in the
negative,
can
the
complainant
be
permitted to present the complaint
again notwithstanding the fact that the
period of one month stipulated under
Section 142(b) for the filing of such a
complaint has expired.

41. Section 142 of the NI Act
prescribes the mode and so also the time
within which a complaint for an offence
under Section 138 of the NI Act can be
1684 INDIAN LAW REPORTS ALLAHABAD SERIES
filed. A complaint made under Section 138
by the payee or the holder in due course of
the cheque has to be in writing and needs
to be made within one month from the date
on which the cause of action has arisen
under clause (c) of the proviso to Section
138. The period of one month under
Section 142(b) begins from the date on
which the cause of action has arisen under
clause (c) of the proviso to Section 138.
However, if the complainant satisfies the
Court that he had sufficient cause for not
making a complaint within the prescribed
period of one month, a complaint may be
taken by the Court after the prescribed
period. Now, since our answer to question
(i) is in the negative, we observe that the
payee or the holder in due course of the
cheque may file a fresh complaint within
one month from the date of decision in the
criminal case and, in that event, delay in
filing the complaint will be treated as
having been condoned under the proviso to
clause (b) of Section 142 of the NI Act. This
direction shall be deemed to be applicable
to all such pending cases where the
complaint does not proceed further in view
of our answer to question (i). As we have
already held that a complaint filed before
the expiry of 15 days from the date of
receipt of notice issued under clause (c) of
the proviso to Section 138 is not
maintainable, the complainant cannot be
permitted to present the very same
complaint at any later stage. His remedy is
only to file a fresh complaint; and if the
same could not be filed within the time
prescribed under Section 142(b), his
recourse is to seek the benefit of the
proviso, satisfying the Court of sufficient
cause.
Question
(ii)
is
answered
accordingly."

20. In N. Harihara Krishnan
(Supra), which has also been relied upon
by the learned counsel for the applicant, the
Apex Court in paragraph nos. 26 and 27
has observed as follows:

"26.
The
scheme
of
the
prosecution in punishing under Section 138
of THE ACT is different from the scheme of
the CrPC. Section 138 creates an offence
and prescribes punishment. No procedure
for the investigation of the offence is
contemplated. The prosecution is initiated
on the basis of a written complaint made by
the payee of a cheque. Obviously such
complaints
must
contain
the
factual
allegations
constituting
each
of
the
ingredients of the offence under Section
138. Those ingredients are: (1) that a
person drew a cheque on an account
maintained by him with the banker; (2) that
such a cheque when presented to the bank
is returned by the bank unpaid; (3) that
such a cheque was presented to the bank
within a period of six months from the date
it was drawn or within the period of its
validity whichever is earlier; (4) that the
payee demanded in writing from the
drawer of the cheque the payment of the
amount of money due under the cheque to
payee; and (5) such a notice of payment is
made within a period of 30 days from the
date of the receipt of the information by the
payee from the bank regarding the return
of the cheque as unpaid. It is obvious from
the scheme of Section 138 that each one of
the ingredients flows from a document
which evidences the existence of such an
ingredient. The only other ingredient which
is required to be proved to establish the
commission of an offence under Section
138 is that inspite of the demand notice
referred to above, the drawer of the cheque
failed to make the payment within a period
of 15 days from the date of the receipt of
the demand. A fact which the complainant
can only assert but not prove, the burden
3-5 All. Vijay Kumar Mishra Vs. State of U.P. & Anr.
1685
would essentially be on the drawer of the
cheque to prove that he had in fact made
the payment pursuant to the demand.

27. By the nature of the offence
under Section 138 of the Act, the first
ingredient constituting the offence is the
fact that a person drew a cheque. The
identity of the drawer of the cheque is
necessarily required to be known to the
complainant
(payee)
and
needs
investigation and would not normally be in
dispute unless the person who is alleged to
have drawn a cheque disputes that very
fact. The other facts required to be proved
for securing the punishment of the person
who drew a cheque that eventually got
dishonoured is that the payee of the cheque
did in fact comply with each one of the
steps contemplated under Section 138 of
THE ACT before initiating prosecution.
Because it is already held by this Court
that failure to comply with any one of the
steps contemplated under Section 138
would not provide " cause of action for
prosecution".