Research › Search › Judgment

Himachal Pradesh High Court · body

2025 DAILYLAW 3885 (HP)

Dyal Negi @ Hardyal v. Anil Kumar

2025-10-31

Rakesh Kainthla

body2025
JUDGMENT : RAKESH KAINTHLA, J. 1. The present revision is directed against the judgment dated 02.09.2019, passed by learned Sessions Judge, Kullu, H.P. (learned Appellate Court), vide which the judgment of conviction dated 12.04.2019 and order of sentence dated 17.4.2019, passed by learned Chief Judicial Magistrate, Kullu, District Kullu, H.P. (learned Trial Court) were upheld. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.) 2. Briefly stated, the facts giving rise to the present revision are that the complainant filed a complaint before the learned Trial Court against the accused for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (NI Act). It was asserted that the parties were known to each other. The accused borrowed Rs.8,00,000/- from the complainant for his personal needs. He handed over a post-dated cheque of Rs.8,00,000/- to discharge his liability. The complainant presented the cheque before the bank, but it was dishonoured with an endorsement “funds insufficient”. The complainant sent a notice to the accused. The accused sent a reply to the notice but did not pay the amount. Hence, a complaint was filed against the accused for taking action as per the law. 3. Learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, a notice of accusation was put to him for the commission of an offence punishable under Section 138 of the NI Act, to which he pleaded not guilty and claimed to be tried. 4. The complainant examined himself (CW1) to prove his complaint. 5. The accused, in his statement recorded under Section 313 Cr.P.C., denied the complainant’s case in its entirety. He stated that a false case was made against him. Narender Kumar was present before the Court on 28.08.2018, but was given up by the learned Counsel for defence, who also closed the defence evidence without examining any witness. 6. Learned Trial Court held that the issuance of the cheque was not disputed, and a presumption would arise that the cheque was issued for consideration in discharge of the debt/liability. The burden would shift upon the accused to rebut the presumption. However, the accused did not produce any evidence to rebut the presumption. The cross-examination of the complainant also did not rebut the presumption. The cheque was dishonoured with an endorsement “funds insufficient”. The burden would shift upon the accused to rebut the presumption. However, the accused did not produce any evidence to rebut the presumption. The cross-examination of the complainant also did not rebut the presumption. The cheque was dishonoured with an endorsement “funds insufficient”. The legal notice was duly received by the accused, and he failed to repay the amount. Hence, the accused was convicted of the commission of an offence punishable under Section 138 of the NI Act and was sentenced to undergo simple imprisonment for four months and pay a compensation of Rs. 8,00,000/- to the complainant. 7. Being aggrieved by the judgment and order passed by the learned Trial Court, the accused filed an appeal, which was decided by the learned Sessions Judge, Kullu (learned Appellate Court). Learned Appellate Court concurred with the findings recorded by the learned Trial Court that the issuance of the cheque was not disputed, and a presumption would arise that the cheque was issued for consideration to discharge the liability. The cross-examination of the complainant was not sufficient to rebut the presumption. The cheque was dishonoured with an endorsement “funds insufficient”, and the accused had received a notice issued by the complainant. All the ingredients of the commission of an offence punishable under Section 138 of the NI Act were duly satisfied. Learned Trial Court had taken a lenient view while imposing the sentence, and no interference was required with the sentence imposed by the learned Trial Court. Therefore, the appeal was dismissed. 8. Being aggrieved by the judgments and order passed by the learned Courts below, the accused has filed the present revision asserting that the learned Courts below erred in appreciating the material placed before them. The complainant had failed to prove the existence of a legally enforceable debt/liability or that he had a financial capacity to advance a huge amount of Rs.8,00,000/-. Therefore, it was prayed that the present revision be allowed and the judgments and order passed by the learned Courts below be set aside. 9. I have heard Mr Paras Dhaulta, learned Legal Aid Counsel for the petitioner, and Mr Gunjan Sharma, learned counsel for the respondent/accused. 10. Mr Paras Dhaulta, learned Legal Aid Counsel for the petitioner, submitted that the complainant has failed to establish the existence of any legal liability. The notice was issued by the complainant on 19.03.2014. 9. I have heard Mr Paras Dhaulta, learned Legal Aid Counsel for the petitioner, and Mr Gunjan Sharma, learned counsel for the respondent/accused. 10. Mr Paras Dhaulta, learned Legal Aid Counsel for the petitioner, submitted that the complainant has failed to establish the existence of any legal liability. The notice was issued by the complainant on 19.03.2014. The acknowledgment was received by him, but it does not bear any date. There is no evidence of the date of delivery; a presumption has to be drawn that notice was served within 30 days. Once such a presumption is drawn, the complaint was premature. The learned Courts below did not appreciate this aspect. Hence, he prayed that the present revision be allowed and the judgment passed by the learned Courts below be set aside. 11. Mr Gunjan Sharma, learned counsel for the respondent/complainant, submitted that the accused admitted the receipt of the notice. He did not take the plea of the complaint being premature before the learned Courts below, and it is impermissible to take this plea before this Court during the revision proceedings. Learned Courts below had properly appreciated the evidence, and this Court should not interfere with the concurrent finding of fact recorded by the learned Courts below. Hence, he prayed that the revision be dismissed. 12. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 13. It was laid down by the Hon’ble Supreme Court in Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204 : (2022) 3 SCC (Cri) 348 : 2022 SCC OnLine SC 786 that a revisional court is not an appellate court and it can only rectify the patent defect, errors of jurisdiction or the law. It was observed at page 207: “10. Before adverting to the merits of the contentions, at the outset, it is apt to mention that there are concurrent findings of conviction arrived at by two courts after a detailed appreciation of the material and evidence brought on record. The High Court in criminal revision against conviction is not supposed to exercise the jurisdiction like the appellate court, and the scope of interference in revision is extremely narrow. The High Court in criminal revision against conviction is not supposed to exercise the jurisdiction like the appellate court, and the scope of interference in revision is extremely narrow. Section 397 of the Criminal Procedure Code (in short “CrPC”) vests jurisdiction to satisfy itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court. The object of the provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error which is to be determined on the merits of individual cases. It is also well settled that while considering the same, the Revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings. 14. This position was reiterated in State of Gujarat v. Dilipsinh Kishorsinh Rao, (2023) 17 SCC 688 : 2023 SCC OnLine SC 1294, wherein it was observed at page 695: “14. The power and jurisdiction of the Higher Court under Section 397 CrPC, which vests the court with the power to call for and examine records of an inferior court, is for the purposes of satisfying itself as to the legality and regularities of any proceeding or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in such proceedings. 15. It would be apposite to refer to the judgment of this Court in Amit Kapoor v. Ramesh Chander [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687: (2013) 1 SCC (Cri) 986], where scope of Section 397 has been considered and succinctly explained as under: (SCC p. 475, paras 12-13) “12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error, and it may not be appropriate for the court to scrutinise the orders, which, upon the face of it, bear a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored, or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits. 13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in the exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even the framing of the charge is a much-advanced stage in the proceedings under CrPC.” 15. It was held in Kishan Rao v. Shankargouda, (2018) 8 SCC 165 : (2018) 3 SCC (Cri) 544 : (2018) 4 SCC (Civ) 37 : 2018 SCC OnLine SC 651 that it is impermissible for the High Court to reappreciate the evidence and come to its conclusions in the absence of any perversity. It was observed at page 169: “12. This Court has time and again examined the scope of Sections 397/401 CrPC and the grounds for exercising the revisional jurisdiction by the High Court. In State of Kerala v. Puttumana Illath Jathavedan Namboodiri, (1999) 2 SCC 452 : 1999 SCC (Cri) 275], while considering the scope of the revisional jurisdiction of the High Court, this Court has laid down the following: (SCC pp. 454-55, para 5) 5. In State of Kerala v. Puttumana Illath Jathavedan Namboodiri, (1999) 2 SCC 452 : 1999 SCC (Cri) 275], while considering the scope of the revisional jurisdiction of the High Court, this Court has laid down the following: (SCC pp. 454-55, para 5) 5. … In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting a miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court, nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise amount to a gross miscarriage of justice. On scrutinising the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation in concluding that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence.…” 13. Another judgment which has also been referred to and relied on by the High Court is the judgment of this Court in Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke, (2015) 3 SCC 123 : (2015) 2 SCC (Cri) 19]. This Court held that the High Court, in the exercise of revisional jurisdiction, shall not interfere with the order of the Magistrate unless it is perverse or wholly unreasonable or there is non- consideration of any relevant material, the order cannot be set aside merely on the ground that another view is possible. The following has been laid down in para 14: (SCC p. 135) “14. … Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with the decision in exercise of their revisional jurisdiction.” 16. This position was reiterated in Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197 : (2019) 2 SCC (Cri) 40 : (2019) 2 SCC (Civ) 309 : 2019 SCC OnLine SC 13, wherein it was observed at page 205: “16. It is well settled that in the exercise of revisional jurisdiction under Section 482 of the Criminal Procedure Code, the High Court does not, in the absence of perversity, upset concurrent factual findings. It is not for the Revisional Court to re-analyse and re-interpret the evidence on record. 17. As held by this Court in Southern Sales & Services v. Sauermilch Design and Handels GmbH, (2008) 14 SCC 457 , it is a well-established principle of law that the Revisional Court will not interfere even if a wrong order is passed by a court having jurisdiction, in the absence of a jurisdictional error. The answer to the first question is, therefore, in the negative.” 17. The present revision has to be decided as per the parameters laid down by the Hon’ble Supreme Court 18. The ingredients of an offence punishable under Section 138 of the NI Act were explained by the Hon’ble Supreme Court in Kaveri Plastics v. Mahdoom Bawa Bahrudeen Noorul, 2025 SCC OnLine SC 2019 as under: - 5.1.1. In K.R. Indira v. Dr. The ingredients of an offence punishable under Section 138 of the NI Act were explained by the Hon’ble Supreme Court in Kaveri Plastics v. Mahdoom Bawa Bahrudeen Noorul, 2025 SCC OnLine SC 2019 as under: - 5.1.1. In K.R. Indira v. Dr. G. Adinarayana (2003) 8 SCC 300 , this Court enlisted the components, aspects and the acts, the concatenation of which would make the offence under Section 138 of the Act complete, to be these (i) drawing of the cheque by a person on an account maintained by him with a banker, for payment to another person from out of that account for discharge in whole/in part of any debt or liability, (ii) presentation of the cheque by the payee or the holder in due course to the bank, (iii) returning the cheque unpaid by the drawee bank for want of sufficient funds to the credit of the drawer or any arrangement with the banker to pay the sum covered by the cheque, (iv) giving notice in writing to the drawer of the cheque within 15 days of the receipt of information by the payee from the bank regarding the return of the cheque as unpaid demanding payment of the cheque amount, and (v) failure of the drawer to make payment to the payee or the holder in due course of the cheque, of the amount covered by the cheque within 15 days of the receipt of the notice. 19. It was submitted on behalf of the accused that the complaint was premature and the learned Courts below erred in ignoring this aspect. It was submitted on behalf of the complainant that the accused had not taken a plea of limitation before the learned Courts below, and it is impermissible to take this plea in the present proceedings. This submission cannot be accepted. It was laid down by the Hon’ble Supreme Court in Pawan Kumar Ralli v. Maninder Singh Narula, (2014) 15 SCC 245 : (2015) 4 SCC (Cri) 640 : 2014 SCC OnLine SC 616 that the plea of limitation has to be adjudicated even if it is raised for the first time in the High Court. It was observed at page 253: 19. It was observed at page 253: 19. However, when the issue of limitation had come up for the first time before the High Court, it ought to have dealt with the same on merits as per the proviso to Section 142(b) of the Act. The said proviso appended to clause (b) of Section 142 of the Act was inserted by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002, and the legislative intent was, no doubt, in order to overcome the technicality of the limitation period. The Statement of Objects and Reasons appended to the Amendment Bill, 2002 suggests that the introduction of this proviso was to provide discretion to the court to take cognizance of offence even after expiry of the period of limitation (see MSR Leathers v. S. Palaniappan [MSR Leathers v. S. Palaniappan, (2013) 1 SCC 177 : (2013) 1 SCC (Civ) 424: (2013) 2 SCC (Cri) 458]). Only with a view to obviate the difficulties on the part of the complainant, Parliament inserted the proviso to clause (b) of Section 142 of the Act in the year 2002. It confers a jurisdiction upon the court to condone the delay (see Subodh S. Salaskar v. Jayprakash M. Shah [Subodh S. Salaskar v. Jayprakash M. Shah, (2008) 13 SCC 689 : (2009) 3 SCC (Cri) 834]).” 20. The complainant stated in his proof affidavit that the cause of action arose to the complainant on 10.03.2014 when the accused issued the cheque, 11.03.2014 when he received the intimation of the dishonour and 18.03.2014 when he issued the notice demanding the payment of the money and thereafter when the accused failed to repay the amount despite the receipt of the notice. He stated in para 4 of the proof affidavit that he had issued a notice dated 18.03.2014, which was sent on 19.03.2014. The notice was duly received by the accused, but the accused failed to repay the amount. Significantly, the complaint is silent regarding the date of delivery of the notice. The complainant did not file any reply to the notice. Even though he had received it, to show on which date the notice was received by the accused. The complainant filed the acknowledgment, but it does not specify any date. Thus, there is no material on record to determine the date of the service of notice upon the accused. 21. The complainant did not file any reply to the notice. Even though he had received it, to show on which date the notice was received by the accused. The complainant filed the acknowledgment, but it does not specify any date. Thus, there is no material on record to determine the date of the service of notice upon the accused. 21. It was laid down by the Hon’ble Supreme Court in Subodh S. Salaskar v. Jayprakash M. Shah, (2008) 13 SCC 689 : (2009) 3 SCC (Cri) 834 : 2008 SCC OnLine SC 1174 that where a notice was sent by registered post acknowledge due, the presumption of service of notice can be raised within a reasonable time and 30 days must be held to be sufficient for service of notice. It was observed at page 699: “23. Thirty days ordinarily must be held to be sufficient for service of notice. In fact, when the service of notice is sought to be effected by speed post, ordinarily, the service takes place within a few days. Even under Order 5 Rule 9(5) of the Code of Civil Procedure, 1908, a summons is presumed to be served if it does not come back within thirty days. In a situation of this nature, there was no occasion for the Court to hold that service of notice could not be effected within a period of thirty days.” 22. The Jharkhand High Court considered this question in Manoj Kumar Nag v. State of Jharkhand, 2021 SCC OnLine Jhar 458 and held that when there is no evidence regarding the service, the presumption regarding the delivery of the notice can be made after thirty days of the issuance. It was observed: “22. This Court finds that there is no material on record regarding the service of legal notice dated 03.03.2008 dispatched by registry on 04.03.2008 upon the petitioner, and it is not the case of the complainant that the legal notice was returned unserved or returned for any other reason. This court is also of the considered view that a presumption regarding service of notice sent through registered cover can be drawn only upon expiry of 30 days from the date of dispatch of notice, as has been held by the Hon'ble Supreme Court in the judgment reported in (2008) 13 SCC 689 (Subodh S. Salaskar v. Jayprakash M. Sah). This court is also of the considered view that a presumption regarding service of notice sent through registered cover can be drawn only upon expiry of 30 days from the date of dispatch of notice, as has been held by the Hon'ble Supreme Court in the judgment reported in (2008) 13 SCC 689 (Subodh S. Salaskar v. Jayprakash M. Sah). In the said judgment, the notice was sent through speed post, and although the actual date of service of notice was not known, the Complainant proceeded on the basis that the same was served within a reasonable period. It was held that if the presumption of notice within the reasonable period is raised, the deemed service at best can be taken to be 30 days from the date of its issuance and the accused was required to make payment in terms of the said notice within 15 days thereafter and the complaint petition therefore could have been filed after expiry of 15 days given to the accused for payment of money after receipt of notice.” 23. A similar view was taken in Anil Kumar Goel v. State of U.P., 2021 SCC OnLine All 410, wherein it was observed: “18. Coming to the facts of the present case, the notice having been sent on 19.09.2012, if the presumption of service of notice within a reasonable time is raised, shall be deemed to have been served, at best, within a period of 30 days from the date of issuance thereof, i.e. 19.09.2012. The applicant was required to make payment in terms of the said notice within 15 days thereafter, i.e. on or about 3.11.2012. The complaint, therefore, should have been filed by 03.12.12. Admittedly, the complaint was filed on 19.11.2012 and therefore, at this stage, it cannot be said that no proceedings under Section 138 of the Act could be drawn against the applicant.” 24. Madhya Pradesh High Court has also taken a similar view in Vishal Gupta vs. Kishan Batham (04.08.2023 - MPHC): MANU/MP/2098/2023, wherein it was observed: “11. Thus, the learned Trial Court committed no mistake in holding that in the absence of any proof of service of notice on a particular day to the accused, it would be deemed to be served on the 30th day of the dispatch of notice.” 25. This position was reiterated in Damodar Mallick vs. The State of Jharkhand and Ors. Thus, the learned Trial Court committed no mistake in holding that in the absence of any proof of service of notice on a particular day to the accused, it would be deemed to be served on the 30th day of the dispatch of notice.” 25. This position was reiterated in Damodar Mallick vs. The State of Jharkhand and Ors. (08.01.2024 - JHRHC): MANU/JH/0024/2024 wherein it was observed: “9. It is crystal clear from plain reading of Section 138 of the N.I. Act that the drawer of a cheque; if fails to make the payment of the amount of the cheque to the payee within 15 days of the receipt of the demand notice, then the cognisance of the offence can be taken by a learned Judicial Magistrate for the offence punishable under Section 138 of the N.I. Act. The question arises what if, there is no document to suggest that the demand notice in writing given by the complainant-opposite party No. 2 has been served upon the drawer of the cheque, as has been held by the Hon'ble Supreme Court of India in the case of the Subodh S. Salaskar vs. Jayprakash M. Shah & Another reported in MANU/SC/3298/2008 : (2008) 13 SCC 689 and which principle of law has been reiterated by this Court in the case of Md. Siraj vs. State of Jharkhand & Another passed in Cr.M.P. No. 1677 of 2022 dated 21st of November, 2023; that the law is well settled that in case there is no material to suggest that such demand notice was ever served upon drawer of the cheque or any material that such demand notice has returned unserved within the period of 30 days from the date of the issue of such notice, such demand notice is deemed to have been served on expiry of the period of 30 days from the date of issue of such notice and the cognizance of the offence punishable under Section 138 of the N.I. Act can be taken if the drawer of cheque fails to pay the amount as per the cheque within 15 days of such deemed service of notice. So considering the claim of the complainant that the notice was sent on 15.05.2019 and the complaint was filed on 14.06.2019 without any material to suggest that during that period the petitioner had received notice of demand and 15 days have elapsed after receipt of such notice of demand on or before 14.06.2019, this Court has no hesitation in holding that the complaint is pre-mature, hence, the cognizance is bad in law.” 26. The notice was sent on 19.03.2014 and would be deemed to be served on 18.04.2014. The accused had 15 days to pay the amount. That complaint was filed on 16.04.2014 within the period of 15 days available to the accused to pay the amount. Thus, the complaint was premature. It was laid down by the Hon’ble Supreme Court in Gajanand Burange v. Laxmi Chand Goyal, 2022 SCC OnLine SC 1711, that no action can be taken on a premature complaint and the same is liable to be dismissed. It was observed: 5. The issue which is raised in this appeal is no longer res integra and is covered by a three-judge bench decision of this Court in Yogendra Pratap Singh v. Savitri Pandey (2014) 10 SCC 713 . Two issues were formulated for decision before the three-judge Bench, which were: “1.1. (i) Can cognizance of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 be taken on the basis of a complaint filed before the expiry of the period of 15 days stipulated in the notice required to be served upon the drawer of the cheque in terms of Section 138(c) of the Act aforementioned? And, 1.2. (ii) If the answer to Question 1 is in the negative, can the complainant be permitted to present the complaint again, notwithstanding the fact that the period of one month stipulated under Section 142(b) for the filing of such a complaint has expired?” 6. The first issue was resolved by paragraph 35 of the judgment, which is extracted below: “35. Can an offence under Section 138 of the NI Act be said to have been committed when the period provided in clause (c) of the proviso has not expired? Section 2(d) of the Code defines “complaint”. According to this definition, a complaint means any allegation made orally or in writing to a Magistrate with a view to taking action against a person who has committed an offence. Section 2(d) of the Code defines “complaint”. According to this definition, a complaint means any allegation made orally or in writing to a Magistrate with a view to taking action against a person who has committed an offence. Commission of an offence is a sine qua non for filing a complaint and for taking cognisance of such offence. A bare reading of the provision contained in clause (c) of the proviso makes it clear that no complaint can be filed for an offence under Section 138 of the NI Act unless the period of 15 days has elapsed. Any complaint filed before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint at all in the eyes of the law. It is not the question of prematurity of the complaint, where it is filed before the expiry of 15 days from the date on which notice has been served on him; it is no complaint at all under the law. As a matter of fact, Section 142 of the NI Act, inter alia, creates a legal bar on the court from taking cognisance of an offence under Section 138 except upon a written complaint. Since a complaint filed under Section 138 of the NI Act before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint in the eye of the law, obviously, no cognisance of an offence can be taken on the basis of such a complaint. Merely because at the time of taking cognizance by the court, the period of 15 days has expired from the date on which notice has been served on the drawer/accused, the court is not clothed with the jurisdiction to take cognizance of an offence under Section 138 on a complaint filed before the expiry of 15 days from the date of receipt of notice by the drawer of the cheque.” 7. In the present case, while the notice was received by the appellant on 8 November 2005, the complaint was filed before the period of fifteen days was complete. The complaint could have been filed only after 23 November 2005, but was filed on 22 November 2005. In the present case, while the notice was received by the appellant on 8 November 2005, the complaint was filed before the period of fifteen days was complete. The complaint could have been filed only after 23 November 2005, but was filed on 22 November 2005. In view of the legal bar which is created by Section 142 of the NI Act, as explained in the three-judge Bench decision of this Court, taking of cognisance by the Court was contrary to the law and the complaint was not maintainable before the expiry of the period of fifteen days from the date of its receipt by the appellant.” 27. Therefore, the submission made on behalf of the accused has to be accepted as correct that the complaint was premature and no action could have been taken on the same. 28. Learned counsel for the complainant submitted that the accused could have paid the amount within 15 days from the date of receipt of the notice, and the plea that he had not received the notice was not available to him. He relied upon the judgment of the Hon’ble Supreme Court in C.C. Allavi Haji vs. Pala Pelly Mohd. 2007 (6) SCC 555 in support of this submission. This submission will not help the complainant because the accused never disputed the receipt of the notice, but he claimed that the complaint was premature. Therefore, this judgment will not help the complainant. 29. The complainant stated in his cross-examination that he had paid the money to the accused because he knew him. He had not charged any interest. His income was Rs.10,00,000/- per annum, but he did not file the income tax return. He had paid the money to the accused in cash and by cheque. However, he did not remember the amount of money paid in cash. He had paid about Rs. 1.75 lakh by means of a cheque. The cheque was drawn by the accused on the next day. He usually keeps Rs.1-2 lakhs at home. He volunteered to say that he had received the payment from horticulture, which money was paid to the accused. 30. The cross-examination of the complainant makes his financial capacity highly doubtful. He claimed that he had paid Rs.1.75 lakh by means of a cheque, but did not produce any material to establish this fact. He volunteered to say that he had received the payment from horticulture, which money was paid to the accused. 30. The cross-examination of the complainant makes his financial capacity highly doubtful. He claimed that he had paid Rs.1.75 lakh by means of a cheque, but did not produce any material to establish this fact. He stated that he usually keepsRs.1-2 lakhs at home but was able to pay about Rs.6 lakhs in cash to the accused on his demand. He claimed that he had received the payment from the horticulture department, but did not file any proof of such payment or mention the details of the payment received. Further, it is difficult to believe that a government department would have made the payment in cash. He stated that his annual income was Rs.10,00,000/-, but did not file any income tax return to establish this fact. All these circumstances made it difficult to place reliance upon the financial capacity of the complainant. It was laid down by the Hon’ble Supreme Court in Tedhi Singh vs. Narayan Dass Mahant, (2022) 6 SCC 735 that the accused has a right to demonstrate that the complainant did not have the financial capacity to advance the loan stated to have been advanced by him. It was observed: - “9….However, the accused has the right to demonstrate that the complainant in a particular case did not have the capacity and therefore, the case of the accused is acceptable, which he can do by producing independent materials, namely, by examining his witnesses and producing documents. It is also open to him to establish the very same aspect by pointing to the materials produced by the complainant himself. He can further, more importantly, achieve this result through the cross- examination of the witnesses of the complainant. Ultimately, it becomes the duty of the Courts to consider carefully and appreciate the totality of the evidence and then come to a conclusion whether, in the given case, the accused has shown that the case of the complainant is in peril for the reason that the accused has established a probable defence.” 31. It was held by the Hon’ble Supreme Court in Basalingappa vs. Mudibasappa, (2019) 5 SCC 418 , that where the financial capacity to pay Rs.6,00,000/- was questioned and there was no satisfactory reply, the accused had raised a probable defence. It was observed: - “30. It was held by the Hon’ble Supreme Court in Basalingappa vs. Mudibasappa, (2019) 5 SCC 418 , that where the financial capacity to pay Rs.6,00,000/- was questioned and there was no satisfactory reply, the accused had raised a probable defence. It was observed: - “30. We are of the view that when evidence was led before the Court to indicate that apart from a loan of Rs. 6 lakhs given to the accused, within 02 years, an amount of Rs. 18 lakhs has been given out by the complainant and his financial capacity being questioned, it was incumbent on the complainant to have explained his financial capacity. The court cannot insist on a person to lead negative evidence. The observation of the High Court that the trial court's finding that the complainant failed to prove his financial capacity for lending money is perverse cannot be supported. We fail to see how the trial court's findings can be termed as perverse by the High Court when it was based on consideration of the evidence, which was led on behalf of the defence.” 32. It was laid down by the Hon’ble Supreme Court in Dattatraya v. Sharanappa, (2024) 8 SCC 573 : (2024) 3 SCC (Cri) 776 : 2024 SCC OnLine SC 1899 that when the financial capacity of the accused is not established, the accused is entitled to acquittal. It was observed: “29….Furthermore, there was no financial capacity or acknowledgement in his income tax returns by the appellant to the effect of having advanced a loan to the respondent. Even further, the appellant has not been able to showcase as to when the said loan was advanced in favour of the respondent, nor has he been able to explain as to how a cheque issued by the respondent, allegedly in favour of Mr Mallikarjun, landed in the hands of the instant holder, that is, the appellant.” 33. A similar view was taken in John K. Abraham vs. Simon C. Abraham & Another, (2014) 2 SCC 236 , wherein it was held:- “9. A similar view was taken in John K. Abraham vs. Simon C. Abraham & Another, (2014) 2 SCC 236 , wherein it was held:- “9. It has to be stated that in order to draw the presumption under Section 118 read along with 139 of the Negotiable Instruments Act, the burden was heavy upon the complainant to have shown that he had required funds for having advanced the money to the accused; that the issuance of the cheque in support of the said payment advanced was true and that the accused was bound to make the payment as had been agreed while issuing the cheque in favour of the complainant.” 34. Therefore, the complainant’s case was doubtful because he had failed to establish his financial capacity. 35. It was submitted that the evidence of the financial capacity was not required to be given because of the presumption contained in Sections 118(a) and 139 of the NI Act. There is no dispute with the proposition of law that a presumption arises by the admission of the signature on the cheque under the NI Act that it was issued for consideration in the discharge of the legal liability. However, the presumption is rebuttable, and the moment evidence is led, the presumption stands rebutted. It was laid down by the Hon’ble Supreme Court in Rajesh Jain v. Ajay Singh, (2023) 10 SCC 148 : 2023 SCC OnLine SC 1275 that the presumption applies in the absence of evidence and disappears after the evidence is produced. It was observed: “38. John Henry Wigmore [John Henry Wigmore and the Rules of Evidence: The Hidden Origins of Modern Law] on Evidence states as follows: “The peculiar effect of the presumption of law is merely to invoke a rule of law compelling the Jury to reach the conclusion in the absence of evidence to the contrary from the opponent but if the opponent does offer evidence to the contrary (sufficient to satisfy the Judge's requirement of some evidence), the presumption ‘disappears as a rule of law and the case is in the Jury's hands free from any rule’.” 36. In the present case, the cross-examination of the complainant made his financial capacity doubtful, and the presumption would be displaced. 37. Both the learned Courts below did not notice this aspect. 38. In the present case, the cross-examination of the complainant made his financial capacity doubtful, and the presumption would be displaced. 37. Both the learned Courts below did not notice this aspect. 38. In view of the above, the present revision is allowed and the judgment of conviction dated 12.04.2019 and order of sentence dated 17.4.2019, passed by learned Chief Judicial Magistrate, Kullu, District Kullu, H.P., affirmed by learned Sessions Judge, Kullu, H.P. vide judgment dated 02.09.2019, are ordered to be set aside. The accused is acquitted of the commission of an offence punishable under Section 138 of the NI Act. The fine amount, if deposited be refunded to him after the expiry of the period of limitation in case no appeal is filed, and in case of appeal, the same be dealt with as per the orders of the Hon’ble Supreme Court. 39. In view of the provisions of Section 437-A of the Code of Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha Sanhita, 2023) the petitioner is directed to furnish bail bonds in the sum of Rs.25,000/- with one surety in the like amount to the satisfaction of the learned Trial Court within four weeks, which shall be effective for six months with stipulation that in the event of Special Leave Petition being filed against this judgment, or on grant of the leave, the petitioner on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. 40. A copy of this judgment, along with the record of the learned Courts below, be sent back forthwith. Pending applications, if any, also stand disposed of.