Arjun Sharma vs State of Jharkhand And Ors

I.A. No.5021 of 2019

Heard the parties.

The instant interlocutory application has been filed with a prayer for grant of special leave under section 378(4) of the Code of Criminal Procedure to present this appeal preferred against the Judgment of acquittal dated 28.02.2019, passed by the learned Judicial Magistrate, 1st Class, Jamshedpur in C/1 Case No. 182 of 2015 (Trial No. 97 of 2019) whereby and where under, the learned Magistrate acquitted the accused-respondent no.2 of the charge under section 138 of the Negotiable Instruments Act as the proprietary firm was not made an accused and as the complaint was filed prematurely.

It is submitted by the learned counsel for the petitioner that admittedly, in this case there is no acknowledgement card of the demand notice issued by the complainant-appellant. The demand notice was issued on 05.01.2015 as has been mentioned in paragraph no.2 of the impugned judgment. The complaint was filed on 23.01.2015 as mentioned in paragraph no.11, clause -5 of the impugned judgment. The learned counsel for the appellant relied upon the Judgment of Hon'ble Supreme Court of India in the case of Raghu Lakshminarayanan Vs. Fine Tubes reported in (2007) 5 SCC 103 wherein in paragraph no. 14, the Hon'ble Supreme Court has held as under:-

"14. We, keeping in view the allegations made in the complaint petition, need not dilate in regard to the definition of a "company" or a "partnership firm" as envisaged under Section 34 of the Companies Act, 1956 and Section 4 of the Partnership Act, 1932 respectively, but, we may only note that it is trite that a proprietary concern would not answer the description of either a company incorporated under the Companies Act or a firm within the meaning of the provisions of Section 4 of the Partnership Act."

Hence, it is submitted by the learned counsel for the appellant that the learned court below erred by acquitting the accused person on the ground that according to the learned magistrate the proprietary firm be treated as a company in view of the section 141 of the N.I. Act, 1881. Hence it is submitted that the special leave to present this appeal be granted.

The learned Addl. P.P. on the other hand submits that it being a settled principle of law that in case a demand notice is not served upon the accused of a case, the complaint has to be filed at least 45 days from the date of issue of the notice and admittedly in this case, the complaint was filed less than the said period. So the learned magistrate has rightly acquitted the accused person on the ground that the complaint is premature. Hence, it is submitted by the learned Addl. P.P. that the appellant ought not be given the special leave to present this appeal.

It is a settled principle of law that the period of reckoning of 15 days as required under Section 138 (c ) read with section 142 of the N.I. Act in a case where the complainant cannot bring on record any evidence as to when the notice of demand of the cheque amount was received by the accused is to start from the 30th day from the date of dispatch of the demand-cum-legal notice hence the complaint at the earliest can be filed only after 45 days from the date of dispatch of demand notice as has been held by the Hon'ble Supreme Court of India in the case of Subodh S. Salaskar vs. Jayprakash M. Shah and Another reported in 2009 (3) SCC (Cri) 834 paragraph no. 25 of which reads as under:-

"25. The complaint petition admittedly was filed on 20-4-2001. The notice having been sent on 17-1-2001, if the presumption of service of notice within a reasonable time is raised, it should be deemed to have been served at best within a period of thirty days from the date of issuance thereof i.e. 16-2-2001. The accused was required to make payment in terms of the said notice within fifteen days thereafter i.e. on or about 2-3-2001. The complaint petition, therefore, should have been filed by 2-4-2001."

Considering the settled principle of law as mentioned above since the complaint having been filed prior to 45 days from the date of issue of the demand notice the learned magistrate has rightly held that the complaint is premature and acquitted the accused person of the case.

Accordingly, this Interlocutory Application being without any merit is dismissed.

Consequently this Acquittal Appeal (C) No.72 of 2019 is also dismissed.