Smt.Jayanti Devi Jain W/o Prakashchand Jain @APPELLANT@Hash Devendra Kumar Sinha S/o P. R. Sinha Permanent

Heard on application for grant of leave to appeal under Section 378(4) of CrPC.

This petition has been preferred against judgment dated 21.02.2013 passed by Judicial Magistrate First Class, Durg, (CG) in Case No.1084/2011

wherein the said Court acquitted the respondent for the charges under Section 138 of the Negotiable Instruments Act, 1881.

As per the case of the petitioner, the respondent borrowed money to the tune of Rs.1,20,000/- from her on 28.8.2003 and to repay the same a

cheque was issued on the same day. The petitioner submitted the cheque to the Bank of Maharashtra, Brach Durg for clearance but the same was

dishonoured on account of closure of account of the respondent. Again another cheque was issued in favour of the petitioner which was also

dishonoured on 14.11.2003 for insufficiency of fund.

Case of the complainant is that she issued a notice dated 17.11.2003 to the respondent as per provisions of Section 138 of the Negotiable

Instruments Act, 1881 and the same was received by him on  8.11.2003, but the amount was not repaid that is why the complaint was filed before

the trial Court.

After hearing the parties, the trial Court acquitted the respondent as mentioned above.

Section 138 of the Act shall apply only when

(a) the cheque has been presented to the bank within a period of six months* from the date of which it is drawn or within the period of its validity,

whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving

a notice in writing, to the drawer of the cheque [within thirty days] of the receipt of information by him from the bank regarding the return of the

cheque as unpaid; and

(c) the drawer of such 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 fifteen days of the receipt of the said notice.

*the period has been reduced from six months to three months vide

RBI Notification No.RBI/2011-12/251, DBOD AML BC. No.

47/14.01.001/2011-12 dated 4th November, 2011 (w.e.f. 1-4-2012).

If the notice is issued within 30 days of the dishonour of the cheque and no payment is made within 15 days of the receipt of the notice, then only

cause of action would arise as per Section 142 of the said Act.

In the present case, notice dated 17.11.2003 was not produced before the trial Court by the petitioner. Again acceptance of the

notice/acknowledgment was also not produced before the trial Court. In absence of proof of issuance of notice and acceptance of notice, no cause of

action would arise as per Section 142 of the said Act. The trial Court has elaborately discussed the entire issue and came to a conclusion that no

cause of action would arise in this case and no conviction can be passed against the respondent. Again the trial Court opined that as per the version of

the petitioner, namely Smt. Jayanti Devi Jain (PW-3) she received the amount from the respondent and then returned to his cheque (para 1) . Looking

to her statement, the trial Court opined that it is under cloud that whether any amount is due for payment or not. The trial Court has elaborately

discussed the entire issue and after reassessing all the evidence this Court has no reason to record a contrary finding. It is not a case where the

respondent should be called for full consideration of the petition.

Accordingly, the application for leave to appeal is rejected. Consequently, the CrMP stands dismissed. Consequently, all the interim applications

stand dismissed.