DINESH KUMAR SINGH-I,J. - (1.) This criminal revision has been preferred against the judgment and order dated 16/10/2015 passed by the Sessions Judge, Aligarh in Criminal Revision No. 494 of 2015, M/s. Preeti Garments through its Proprietor Shri Ram Das vs State of U.P . and one another, whereby allowing the revision, the order dated 16/04/2015 of the learned Magistrate has been set-aside and the matter has been remanded with the direction to decide the complaint in accordance with law. Vide order dated 16/04/2015, the Judicial Magistrate, Court No. 2, Aligarh had dismissed the complaint Case No. 1140 of 2014, M/s. Preeti Garments through its Proprietor Shri Ram Das vs Surendra Banjara under Section 138 of Negotiable Instruments Act (to be referred from here onwards in short as '' NI Act ').
(2.) A Complaint Case No. 1140 of 2014 M/s Preeti Garments through its proprietor Sri Ram Das vs. Surendra Banjara was filed u/s 138 of Negotiable Instruments Act . It was mentioned in the complaint that cheque nos. 338060, 338061 and 338062 dated 15/06/2014, 10/07/2014 and 05/08/2014 respectively were dishonoured which led the complainant to present the complaint because on these cheques being presented by the complainant, the bank issued three Memorandums dated 23/08/2014 stating therein that payment of these cheques was not being made because of insufficient amount being in the account of the drawer. Thereafter the opposite party-accused was sent a legal notice dated 01/10/2014 along with receipt of registry dated 01/10/2014 and, thereafter, the complaint was presented in the Court on 24/10/2014 against the opposite party-accused. The learned Court of Magistrate has recorded in its order that the following terms and conditions were necessary to be complied with for filing a complaint: (a) the cheque is presented before the bank within 6 months from the date of its issuance; (b) the payee or the holder in due course, as the case may be, makes a demand for the payment of the said amount of money by giving notice in writing, to the drawer of the cheque; (c) the drawer of the 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 15 days of the receipt of the said notice. The learned Court below has mentioned in its order that the above provision makes it evident that within 30 days of the cheque being dishonoured, it is necessary to issue notice to the drawer of the cheque to make the payment, which is a mandatory provision, but from the perusal of the record in the present case, it transpires that the information of the cheque being dishonoured dated 23/08/2014 is the date of issuance of bank memo, while notice by the complainant to the opposite party-accused was given on 01/10/2014, i.e. after the expiry of 30 days period from the date of dishonour of cheque. In the case at hand the complainant has mentioned 20/09/2014 to be the date of information received about dishonour of cheque, while there is no such evidence presented by him on file, which would reflect that he had received information regarding the cheques being dishonoured on 20/09/2014, because the memo issued by the bank in this regard is of 23/08/2014, which has been filed from the side of the complainant. Thus, relying upon the position of law laid down in Kamlesh Kumar V. State of Bihar and another , 2014 (2) SCC 424, in which the Supreme Court had held a complaint to be not maintainable in case demand notice was not issued within the time limit, the complaint was dismissed on 16.04.2015 under Section 203 Cr. P.C.
(3.) Against the said order dated 16.04.2015, Criminal Revision No. 494 of 2015 was preferred by complainant M/s Preeti Garments through its proprietor Sri Ram Das Vs. Surendra Banjara. The learned revisional Court has given the details of the facts of this case that the complainant/revisionist was doing business of ready-made garments, in connection of which an amount of Rs. 99,00,000/- was outstanding to be paid by the opposite party no. 2- accused. The opposite party no. 2- accused is stated to have issued three post dated cheques, i.e. dated 15/06/2014 of Rs. 57,00,000/-; dated 10/07/2014 of 30,00,000/- and dated 05/08/2014 of 12,00,000/-. When these three cheques were presented by complainant in his account, they were dishonoured because of insufficient amount being in the account of the drawer, information regarding which was dispatched by the bank on 20/09/2014. When the complainant received the information about these cheques having been dishonoured, he contacted opposite party no. 2- accused on phone and asked him to make the payment, but he was not paid the said amount, as a result of which he issued a notice dated 01/10/2014 to the opposite party no. 2-accused demanding the payment of the said amount. But even after service of the said notice upon opposite party no. 2- accused, he did not make the payment within 15 days, which compelled him to present the complaint. In support of his version, besides his affidavit, all the three original cheques, three bank memos, notice dated 01/10/2014, receipt of registry and registered envelope, addressed to the opposite party no. 2- accused, along with acknowledgement receipt, were filed. It is recorded in the said judgment that the Magistrate dismissed the complaint holding it to be not maintainable because the notice was not issued by the revisionist- complainant to the opposite party no. 2- accused within one month of the date when the cheques were dishonoured which was mandate of law, rather the notice was issued on 01/10/2014, hence the complaint was dismissed. It was argued before the learned Revisional Court from the side of the revisionist- complainant that the learned Court below ignored that in paragraph six of the affidavit filed in support of the complaint, it was specifically mentioned by him that the bank had given information to him about the cheques being dishonoured on 20/09/2014, prior to that he had not received any such information. After having received such information, within 10 days thereof, he informed the opposite party no. 2- accused about the cheques having been dishonoured and asked for payment to be made by him of the said amount within 15 days, but the opposite party no. 2- accused refused to receive the notice. Therefore, the learned Magistrate ought not to have dismissed the complaint. It was argued that under the provision of Section 138 of the NI Act, for filing a complaint, the period prescribed for issuance of notice to the accused is to be counted not from the date of dishonour of the cheque by the bank, rather than from the date when the information of such dishonour of cheque was received by the complainant and because in the case at hand the revisionist had received information of dishonour of cheque on 20/09/2014, within 30 days thereof he could have issued notice to opposite party no. 2- accused, while the said information was given to the opposite party no. 2- accused by him within just 10 days of receipt of the said information. Therefore, the order passed by the learned Magistrate was erroneous.;