HIGHCOURTOFCHHATTISGARH.BILASPUR Criminal Misc. Petition No.732 of 2010 APRUCANT/: (Accused) Mahendra Singh Thakur, Aged about39 years, S/p Shri NarayarT Singh Thakur, Occupation Motor Mechanic, Resident of Village Kotari, P.S. and Tahsil Sarangarh, District Raigarh (Chhattisgarh) Versus Umesh Kumar Kesharwani, Aged about 41 years, S/o Ramjilal, Qccupation Business (Pro. Shriram Auto Cen^f, Sarangarh), Resident of Bilaspur Roacf, Sarangarh, Djstrict Raigarh (Chhattisgarh) {Application under Section482 ofthe Code of Criminal Procedure} NON-APPLICANT/: (Complainant) Present: Mr. Sandeep Dubey, coynsel for the petitioner. Mr. R.S. Patel, coynsel fbr the respondent. ^.^-•'Sinale Bench: Hon'ble Mr. T.P.Sharma, J ORALORDER (24-1-2011)-- ::' •':' 1- :'.'1:-'^' '..1'.:-" 1. By this petition under Section 482 of the CrPG, the petitionei" has challenged legalityancl proprietyof theorderdated 26-6-2010 passed by the Additibnal Sessions Judge, Sarangarh in Criminal Revision No.G/20p9affirming the order dated 28-1-2009 passed by the Judicial Magistrate First Class, Sarangarh in Criminal Case No.189/2008, whereby & whereunder learned Judicial Magistrate First Class has framed Gharge against ttie petitioner fbr the offence, punistiable under Section 138 of the NegotiahlelnstrumentsAct,1881 (forshort'theAct'). 2. Brief faets necessary for the disposal of this petition are that the Ffetitibner has issued cheque Nc(.517766of Rs.50,000/- in favour pf tbe respondent for payment dfdebt and discharge of liability, same was presented before State Bank of India, Sarangarh Branch on 1 0-1-2007 which was dishonoured and factum of dishonour was intimated toy the.,, Bank to the respondent on 15-1 -2007, thereafter the resporident issued^ , nptice to the petitioner for payment on 14-2-2007 and finally complaiht •!.l^ •^M ..'•-.1. for tlieoffence punishable under Section 138 of the Act was filed. The complamt was filed beyond the statutory period, Application yncler Section 142 of theActwas filedand after due consjderatiori.samewas allowed. After issuance of proGess and after examining witnesses on behalf ofthe complainant under Section 244 of the CrPC, the trial Court has .framed charge against the petitipner for the offence punishable underSection 138 ofthe Act. . 3; I have heard learned counsel for the parties, perused the order framing chargeand theqrderimpugnedpassedbythe reyisional Court; ' • -/ !' ' ' : • ' ; 1/' '• 1 • ''.' . 1':"'.. "~'l 4. Learned counsel for the petitioner submits that as per the complaint made on behalf of the respondent, cheque issued by the petitioner was dishonoured and same was intimated by the Bank on 15-1 -2007, thereafter, the respondent has issued notice to the petitioner on 14-2- 2007. As per clause (b) of Proviso to Section 138 of the Act, thepayee or the holder in due course of the cheque is underobligation to make demand for payment of the amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of infbiwiation by hirn from the barik regarding return of eheque as unpaid. But in the pi^sent case, the respondent has made demand by giving^ notice in wnting after thirty days^ Period of thirty days is not extendable and Section 5 of the Limitation Aet has rip application forsuch extension. Npn-payment of money due under cheque^flot-offence, only dishonour of ^heque is offence under.Section 138of the Act. This is penal ; proyision and criminal liability. Penal provision and criminalliability are reqyired to be proved strictty. But the respondent has failed tb make demand pf money by giving in writing within thiriy days from the date of informationreceived by him from the Bankas required under clause (b) of Proviso to Section 138 ^of the Act. Therefore, any prosecution and orderframingcharge forthe offence pynishable under'Section 138 ofthe Act is not legally eompetent. 1-earned counsel placed relianee in the matter of Sivakumar v. Natarajan repbrted in (2009) 13 SCC 623 in wHic^^ Court has held that in case of notice issued after thirty-orie days, complaintfiled by payee is notmaintainable. 5. Qn the other hand, learned counsel for ^ respondent opposes the petition and submits that complaint was filed beyond thirty days and tRe Court has condoned the delay in filing such complaint under proviso to i'F .t.'r ,t't '•!-:^ •El ,<**> ^s clayse (b) of SectiQn 142 of the Act. Therefbre, the petitibn is^ ncrt :; >: 'maintainable.' . 1! ';:1 .•::. : ;:''1.. . .. ' '", 1: , • ' :' l'^: . "•.:1:: .'... •<'^,!.^ 6. Provisions of Sectfon 138 of the Act are penal provisions. They read ;l';thus,'.'/::;;'.;;....::'l'.';'.~f-,^':..'. .. : • • ! 1 • . -•::-.,,.. 1::'' :^'>vi °138. Dishonourof chequefor insufficiency, etc.,of ' ^ funds in eac person on an account maihtained by him with a banker ' ^^^^ ff fromoutof;thataccountforthedisGharge/inwholeprin^^^^^^^^^^^^^^^ , part, df smy debt or other liability, is retumed by th& bank unpaict, eitl^er because of the arnount of nibriey^ . ^ standing to the credit of that acGount is jnsuffieient to ; , ' honour the chegue or that it exceeds the amoynt p'^ arranged to be paid from that accountby an agFeernent ^ made \with that'bank; sueh persQn shall be deemed to ; liavecommitted an c^TOe and shall, without prejudic® ^ ? to any other provisions of this Act, be punished with imprisohment for a term whiGh may be extended to two s , years, br with ^ne which^ r^ : ~ amQBntoHhecheque,orwithboth: Proyided that nothing eoritained in ttijs section ; '•-,:•,•:.'/,:^.:..':.':shaltappty.unless—"- ! ;1,, •. : 111 ' : ^ .'1: .. '• ':•'... '— ; •;".^,. ;^';:.;:- (a)the cheque has been presehted to the bank within a period ofsix mpnthsfrom the dateo which if is drawn or within the period of jts^ " ••"^t^ validity, whjchever is earlier; (b)UTe payee or the holcler in due coyrse of the cheque, as the case may be, makes a derriand forthepaymentoftheseiiidamountofmoney; by giving a notice in writing, to the drawer of \ •* the cheque,witNn thirty days ofthe reeeiptdf ^ infbrmatioh byhimfrom the bankregardingthe returnofthechequeasunpaid^and (G) the drawer of such cheque fails to maksVhe payment of the saia amount of money to the ^ payee or, as the case may be, to ttie holder in due course of the cheque, within fifteen days ofthe receipt ofthesaid notice. ,.., ^ ^?. Exp/anaffon—Forthepurposesof this sectipn, ;- "debt orother liability" means a legally enforceabledebt .'l::i.:;^;;\.. "•l';orother:|iability;"::::/'- ' • ' '^ . -: ! „ ' , y .,' ,.,-.1,:':-.,1. ;i,^l;; 7;Nflin-paymentofmoneydueunderthechequebyitselfisnot6ffence,^but as provided under Section 138 of the Act, if moriey due under the cheque is not paid after dishpnQur of cheque and tlie demand is made within stipulated ti^^^^^ punishable underSeetioh 138 of the Act. In prder tp prpve penal provisions of the offenee punjshable ynder Sectjon 138of the Act, the complainant is required^tcp •.it^;' ^^t-'^ ^^^^^^^^ ;<ySoma comply withthe proeedure envisaged under Provisoto Section 138 of the Act, strictly. 8. In the present case, as per copy of complaint and nptice, the' complainant/respondentwasinformedbytheBankon 15-1-2007 relatjng to non-payment of theamount of cheque, thereafter, the eomplainant/ resROhdent has made demand in writing by issuance of riotice dated 14- 2-2007; Admittedly,sameis not within thirty days inter alia; the s ^ respondent has made demand on 31 day of receiptof such information, WNIe Gonsidering same question, the Supreme Coyrt in the matter of Sivakumar (supra) has held that demand madeon 31s day is beyond limitation and such complaint isnot competent. Complaint filed on ttie basjs &f demand notice issued after the stipulated period as required ' \1;_: ,. '. __ ' - . . ;.' ,:-' : ^.'- ^..,".:.•' ..-:.--> under clause (b) of Proviso toSection 138 6f the Aet is not maintainable underthelaw and order framing charge or continuance of any criminat proceedihg will-amount to abuse of process ofthe Court. 9. Consequently, the petition isallowed. Order dated 28-1-2009 passed by the Judicjal Magistrate First Class, Sarangarh in Crinninal Case , Np.i1'8S/2008 and the order impugned are hereby quashed. Criminal proceedjng gehding before the Court of Jydifcial MagistrateFirstClass, Sarangarh ciflainstthe petitionerin Crimihal CaseNo. 189/2008 ishereby '•: ^:1 '••: . ;1,, '.:.:' ;; •.^::^^ -rsa/-,.if::,n'., i:.::, •..-', '/P:'^'-l?'J.R.Sharma:-':: 1:^ :/'/' '.'1 ,:;.',,'11:'' •:';; ; .' • :'. '. ''.^ •l;...v /.;'1^ ':';;:':'' '; 1 ..•-'.•-•^ :^'