Parmeshwar Das vs State of Jharkhand & Anr

Learned counsel for the petitioner Mr. Amit Kumar is present.

Learned counsel for the opposite party No.-2 Mr. Rakesh Kumar Sinha is also present.

During the course of argument, the learned counsel for the opposite party No.-2 has submitted that the offer of settlement for an amount of Rs.

1,50,000/- as made by the petitioner is not acceptable to opposite party No.-2 and the opposite party No.-2 has offered for settlement for an amount of

Rs. 2,00,000/-.

Upon this, the learned counsel appearing on behalf of the petitioner submits that the petitioner is not ready to pay the said amount and he submits

that in such circumstances, the case may be taken up on merits and be finally disposed of.

Accordingly, the learned counsel for the parties have advanced their respective arguments on merits.

The learned counsel appearing on behalf of the petitioner has submitted that the point for consideration before this Court is that the complaint itself

was premature and not maintainable, inasmuch as, the statutory period for filing the complaint under Section 138 of Negotiable Instruments Act had

not expired. While giving the relevant dates, he submits that two cheques are involved in this case, both dated 19.03.2007 for an amount of Rs.

60,000/- and Rs. 50,000/- respectively, total being Rs. 1,10,000/-. He further submits that the cheques were presented and dishonored on the same

date for insufficient fund communicated vide two separate memos dated 21.03.2007. He further submits that the legal notice was dated 26.03.2007

sent through post on 26.03.2007, but was returned back to the sender with an endorsement of refusal of the postal man dated 10.04.2007. He submits

that the opposite party No.-2 instead of waiting for expiry of 15 days from 10.04.2007 filed the complaint case on 17.04.2007 and the statutory period

for filing the complaint case having not expired, the complaint itself was not maintainable. The learned counsel has relied upon the judgment passed by

the Hon’ble Supreme Court reported in (2014) 10 SCC 713 para-Nos.-36 and 37 and submits that the learned trial court while considering the

point of pre-mature complaint has considered the fact that on the date of taking cognizance of the offence, the period of 15 days had expired and

therefore, held that the complaint was not pre-matured. He submits that the Hon’ble Supreme Court has specifically decided this point in para-

Nos.-36 and 37 and the date of taking cognizance is immaterial and what is material is the date of filing the complaint which was admittedly filed prior

to expiry of the prescribed period when calculated from the date of refusal i.e. 10.04.2007. The learned counsel for the petitioner has further

submitted that the learned appellate court while considering the point of pre-mature complaint has recorded that the envelope of notice shows that the

postal man went to the house of the petitioner on 02.04.2007, 03.04.2007 and 09.04.2007 and ultimately on 10.04.2007 notice was returned back to the

complainant mentioning refusal and it appears that refusal were taken by the postal man for service of notice on 02.04.2007 itself and ultimately it was

returned on 10.04.2007 and the endorsement of refusal has been made by the postal man with his signature on 10.04.2007 which is not the date of

refusal by the petitioner i.e. rather it is the date on which the notice was returned. The learned counsel submits that such finding of the learned

appellate court is ex-facie perverse in view of the fact that the endorsement of refusal itself is dated 10.04.2007 and the postal peon has not been

examined as a witness to indicate as to what happened on the previous date of visits to the house of the petitioner on 02.04.2007, 03.04.2007,

09.04.2007. The learned counsel submits that the reason to reject the plea of pre-mature complaint has been dealt with differently by the learned trial

court and the learned appellate court and therefore, it cannot be said that there is concurrent finding on the point. He further submits that there being

specific and clear evidence on record that the refusal was recorded by the postal peon with a date i.e. 10.04.2007, therefore the date of refusal is

10.04.2007 and accordingly, the complaint was pre-mature having been filed on 17.04.2007.

The learned counsel appearing on behalf of the opposite party No.-2 has opposed the prayer of the petitioner and has submitted that both the

learned courts below have held that the complaint was not pre-mature and accordingly, there is no scope for interference in revisional jurisdiction.

Without prejudice to the aforesaid contention, the learned counsel for the opposite party No.-2 has submitted that in view of the observation made by

the Hon’ble Supreme Court in the judgment referred to by the petitioner reported in (2014) 10 SCC 713, the right of the opposite party No.-2 to

file a fresh complaint may be reserved and appropriate observation may be given to that effect in case this Court ultimately finds that the complaint

filed on 17.04.2007 was a pre-mature complaint.

The arguments of both the parties are concluded.

Post this case on 08.01.2021 ‘for Judgment’.