Dhanmantri Sahu vs Premichand Sahu

Heard.

The present petition is filed against the dismissal of criminal revision No. 239 of 2021 preferred by the petitioner by order dated 27.06.2022.

The brief facts of the case are that the petitioner is an accused facing trial under Section 138 of the Negotiable Instruments Act, 1881.

Learned counsel for the petitioner submits that the cheque which was given to the complainant was dishonored at the first instance. However, it was again presented for payment on second instance on 22.05.2018 and it was again dishonored on 24.05.2018.

Consequently, the legal notice should have been served to the petitioner within a period of 30 days from 24.05.2018 uptill on 23.06.2018. Whereas, the notice was served to the petitioner on 30.06.2018, therefore, the case would be barred under Sections 138 and 142 of Negotiable Instruments Act, 1881. He further submits that, at this stage, when the application was filed to discharge the petitioner before the learned Court below, the same was not appreciated and thereby the Court came into wrong conclusion. He placed his reliance in the case of Kamlesh Kumar Vs. State of Bihar and Another reported in (2014) 2 SCC 424 and submits that in the identical cases of like nature hon'ble Supreme Court laid down that the legal notice ought to have been issued within a period of 30 days, therefore, in the instant case since the legal notice was issued after 30 days, the complaint could not have been filed.

Perused the documents.

Perusal of order of the learned Court below would show that evidence by the parties have not been led or has been cross examined. It is only after preliminary notice, summons were issued on the basis of certain complaint which was supported by an affidavit and the petitioner has claimed to be discharged which was disallowed. The Supreme Court in Kamlesh Kumar (supra) has laid down that for the purposes of limitation, insofar as the legal notice is concerned, it has to be served within 30 days of the receipt of information by the drawee from the bank regarding the return of the cheque as unpaid. As on date, the crucial question is as to when the notice of dishonor was received by the complainant and it is a matter of evidence and no inference can be drawn on the solitary statement of the accused/ petitioner that for dishonor of cheque intimation was received by him on 24.05.2018 itself. Therefore, the issue when the information of the dishonor was received is to be substantiated for which the complainant as also petitioner shall have the right of examination and cross examination of the witnesses. The complainant will also have right to adduce evidence in this regard as to when the notice of dishonor was received. The summons having been issued, at this stage, the same cannot be recalled on the basis of presumption that the notice of dishonor of cheque was received on 24.05.2018.

In view of the above, the petition is premature is liable to be and is hereby dismissed.