BIRENDRA PRASAD SAH versus THE STATE OF BIHAR & ANR.

Citation: [2019] 8 S.C.R. 702 · Decided: 08-05-2019 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Appeal(s) allowed

cites 1 · see the full citation network in Lexace

Judgment (excerpt)

A
B
C
D
E
F
G
H
702
SUPREME COURT REPORTS
[2019] 8 S.C.R.
BIRENDRA PRASAD SAH
v.
THE STATE OF BIHAR & ANR.
(Criminal Appeal No. 000868 of 2019)
MAY 08, 2019
[DR. DHANANJAYA Y CHANDRACHUD AND
HEMANT GUPTA, JJ.]
Code of Criminal Procedure, 1973: s.482 – Quashing of
cognizance of offence taken under s.138 NI Act – Case of appellant
was that on receipt of memo on 4.12.2015 from bank regarding
dishonour of cheques issued in his favour by respondent, the
appellant issued a legal notice on 31.12.2015 – According to
appellant, between 14.2.2016 and 23.2.2016, he made queries with
the postal department but no proof of service was provided to him –
Accordingly on 26.2.2016, he issued a second notice – This was
replied by respondent on 2.3.2016 – Thereafter, on 11.5.2016,
appellant filed complaint under s.138 – Magistrate condoned the
delay in filing complaint and took cognizance of offence – High
Court held that complaint was not filed within the statutory period
of thirty days and quashed the proceedings – On appeal, held: The
appellant in the complaint had specifically narrated the circumstance
that despite repeated requests to the postal department, no
acknowledgment of the notice was furnished to him – In such
circumstance, the appellant issued a second notice – The requirement
specified in proviso (b) to s.138 is that the notice must be issued
within thirty days of the receipt of the memo of dishonour – It was
first notice dated 31.12.2015 which constituted the cause of action
for the complaint under s.138 – The complaint was instituted on
11.5.2016 – Under s.142(1), a complaint has to be instituted within
one month of the date on which the cause of action has arisen
under clause (c) of the proviso to s.138 – The proviso, however,
stipulates that cognizance of the 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 – Delay in filing complaint was satisfactorily explained
   [2019] 8 S.C.R. 702
702
A
B
C
D
E
F
G
H
703
in the complaint – High Court had merely adverted to the presumption
that the first notice was deemed to have been served if it was
dispatched in the ordinary course – Even if that presumption was
applicable, sufficient cause was shown by the appellant for
condoning the delay in instituting the complaint – The order is High
Court is, therefore, set aside and complaint is restored to the file of
the trial court – Negotiable Instruments Act, 1881 – ss.138, proviso,
clause (b), (c), s.142(1).
Allowing the appeal, the Court
HELD : The complaint was instituted on 11 May 2016.
Under Section 142(1), a complaint has to be instituted within one
month of the date on which the cause of action has arisen under
clause (c) of the proviso to Section 138. The proviso however
stipulates that cognizance of the 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.  Both in paragraphs 7 and 8 of the complaint,
the appellant indicated adequate and sufficient reasons for not
being able to institute the complaint within the stipulated period.
The CJM condoned the delay on the cause which was shown by
the appellant for the period commencing from 6 April 2018. The
High Court has merely adverted to the presumption that the first
notice would be deemed to have been served if it was dispatched
in the ordinary course.  Even if that presumption applies, sufficient
cause was shown by the appellant for condoning the delay in
instituting the complaint taking the basis of the complaint as the
issuance of the first legal notice dated 31 December 2015. The
impugned judgment of the High Court is unsustainable. The order
passed by the Single Judge is set aside. The complaint accordingly
stood restored to the file of the trial court. [Paras 11, 12]
[707-C-F; 708-A-B]
MSR Leathers v. S Palaniappan (2013) 1 SCC 177 :
[2012] 9 SCR 165 – referred to.
Case Law Reference
[2012] 9 SCR 165
referred to
Para  7
BIRENDRA PRASAD SAH v. THE STATE OF BIHAR & ANR.
A
B
C
D
E
F
G
H
704
SUPREME COURT REPORTS
[2019] 8 S.C.R.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 868 of 2019.
From the Judgment and Order dated 10.05.2018 of the High Court
of Judicature at Patna in Criminal Miscellaneous No. 27495 of 2017.
Nagendra Rai, Sr. Adv., Ms. Prerna Singh, Shantanu Sagar, Aakash
and Ms. Priya Ranjan Advs. for the 

Excerpt shown. Read the full judgment & AI analysis in Lexace.