07.09.2026 Sl. No.19 AMR Ct.No.655 CRA 172 of 2016 In the matter of : M/s. Bhaskar Rubbers .... Appellant Mr. Sumanta Ganguly …for the Appellant Mr. Uttam Kumar Shaw ..for the Respondent no. 2 Dr. Pradip Banerjee, APP Ms. Shalu Gupta …for the State 1. Learned Advocates representing the appellant and respondents appointed by the Calcutta High Court Legal Services Committee are present. 2. Heard the learned Advocates for the parties and perused the materials on record. 3. The instant criminal appeal has been preferred at the behest of the appellant/complainant assailing the judgment and order of acquittal dated 18.05.2015 passed by the learned Trial Court in Trial No. 1972/09 arising out of C.C. No. 17315/09, whereby the respondent/accused was acquitted of the charge under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the “N.I. Act”). 2 4. The case of the complainant in brief, is that in course of a business transaction between the parties, the respondent/accused had issued a cheque bearing No. 558743 dated 25.10.2008 for a sum of Rs.1,27,504/-, drawn on Central Bank of India, Red Cross Place, Kolkata–700001, in favour of the complainant. The said cheque, however, was dishonoured by the bank. Thereafter, the complainant informed the respondent/accused about such dishonour and non- payment and called upon him to liquidate the outstanding dues. 5. Subsequently, the respondent/accused issued another cheque bearing No. 558791 dated 15.03.2009 for the same amount of Rs.1,27,504/-, drawn on Central Bank of India, Red Cross Place, Kolkata–700001, in favour of the complainant. The said cheque was presented by the complainant through its banker, namely, Union Bank of India, Lake Town Branch, Kolkata, for encashment on 16.03.2009. The cheque was, however, dishonoured by the drawee bank with the endorsement/remark “Exceeds arrangements”. The complainant received intimation regarding such dishonour on 23.03.2009 along with the dishonoured cheque and the bank's intimation dated 17.03.2009. 6. Thereafter, the complainant caused a statutory demand notice to be issued to the respondent/accused demanding payment of the cheque amount. It is not in dispute, and has also come in the evidence of P.W.1 in cross-examination, that the respondent/accused received the statutory demand notice on 02.04.2009 as per Exhibit 7 (A/D Card). The complainant, however, instituted the complaint under Section 138 of the N.I. Act on 16.04.2009 before the learned Trial Court, being C.C. No. 17315/09. 3 7. The respondent/accused entered appearance before the learned Trial Court and, at the stage of examination under Section 251 of the Code of Criminal Procedure, pleaded not guilty and claimed to be tried. 8. The learned Trial Court framed eight points for determination. It appears that all the points, except Point No. 8, were decided in favour of the appellant/complainant. However, the learned Trial Court ultimately came to the conclusion that the complaint had been instituted before accrual of the cause of action contemplated under Section 138(c) read with Section 142 of the N.I. Act and, on that ground, acquitted the respondent/accused. 9. The principal, and in substance the only, question which arises for consideration in the present appeal is whether the complaint filed by the appellant on 16.04.2009 was maintainable, having regard to the date of receipt of the statutory demand notice by the respondent/accused, namely, 02.04.2009. 10. It has been fairly submitted by the learned Advocates appearing for both sides that P.W.1, during his cross-examination, admitted that the respondent/accused had received the statutory demand notice on 02.04.2009. Thus, there is no real dispute with regard to the date of receipt of the notice. The admitted factual position is, therefore, that the statutory notice was received by the respondent on 02.04.2009 and the complaint came to be instituted on 16.04.2009. 11. At this stage, the statutory scheme governing an offence under Section 138 of the N.I. Act assumes significance. The provisions of Section 138 prescribe certain mandatory conditions precedent for attracting criminal liability on account of dishonour of a cheque. In 4 particular, under clause (c) of the proviso to Section 138, the drawer of the cheque is required to be given an opportunity to make payment of the cheque amount within fifteen days from the date of receipt of the statutory notice. It is only upon failure of the drawer to make such payment within the said statutory period that the cause of action contemplated under Section 142 arises for institution of a complaint. 12. The requirement of granting fifteen days' time to the drawer is not an empty or merely procedural formality. The statutory scheme consciously affords the drawer an opportunity to make payment of the cheque amount within the stipulated period and thereby avoid the penal consequences contemplated under Section 138. Consequently, until expiry of the statutory period of fifteen days from the date of receipt of the notice, the cause of action for filing a complaint under Section 138 cannot be said to have accrued. 13. In the present case, the statutory notice was admittedly received by the respondent/accused on 02.04.2009. The complainant nevertheless instituted the complaint on 16.04.2009. Thus, the complaint was instituted before expiry of the statutory period of fifteen days available to the respondent for making payment of the cheque amount. 14. In other words, on the date when the complaint was presented before the learned Trial Court, the statutory period contemplated under Section 138(c) had not yet expired and, consequently, the cause of action necessary for institution of the complaint had not accrued. The complaint was, therefore, premature. 5 15. The learned Advocate for the appellant has sought to contend that the complaint was filed within the prescribed period and that there was no deliberate violation of the statutory provision. However, such submission cannot overcome the express statutory requirement contained in Section 138(c) of the N.I. Act. The question is not merely whether the complaint was filed within the period prescribed for taking cognizance after accrual of the cause of action; rather, the question is whether a cause of action had accrued at all on the date on which the complaint was instituted. The answer, on the admitted facts, is in the negative. 16. It is well settled that the statutory notice under Section 138 of the N.I. Act serves a specific purpose. The drawer must be afforded the full statutory opportunity to make payment within fifteen days of receipt of the notice. The penal liability contemplated by Section 138 arises only upon failure to make payment within that period. Therefore, the complaint cannot ordinarily be instituted before the expiry of the statutory period and before accrual of the cause of action. 17. The distinction between the period for making payment after receipt of notice and the period for instituting the complaint after accrual of cause of action is also material. The fifteen-day period under Section 138(c) is a period granted to the drawer to make payment, whereas Section 142 prescribes the period within which the complaint may be instituted after the cause of action has arisen. The two periods operate at different stages and cannot be treated as interchangeable. 6 18. In the present case, the appellant admittedly instituted the complaint on 16.04.2009, whereas the respondent had received the statutory notice only on 02.04.2009. The complaint was thus filed before the statutory period had run its full course. The learned Trial Court, therefore, rightly took note of the premature institution of the complaint and acquitted the respondent/accused. 19. Upon consideration of the impugned judgment, the materials available on record and the submissions advanced by the learned Advocates appearing for the parties, I find no material illegality, perversity or infirmity in the findings recorded by the learned Trial Court warranting interference in the present appeal. 20. It is also well settled that an appellate Court, while considering an appeal against an order of acquittal, is required to exercise due caution before interfering with a finding of acquittal. Where the view taken by the Trial Court is a possible and legally sustainable view on the evidence and materials on record, interference is not warranted merely because another view may also be possible. In the present case, the finding of the learned Trial Court regarding premature institution of the complaint is founded upon an admitted factual position and the statutory scheme under the N.I. Act. There is, therefore, no compelling reason to disturb the order of acquittal. 21. Accordingly, the instant criminal appeal fails and is, hereby, dismissed. 22. The impugned judgment and order of acquittal dated 18.05.2015 passed by the learned Trial Court in Trial No. 1972/09 arising out of C.C. No. 17315/09, whereby the respondent/accused was acquitted 7 of the charge under Section 138 of the Negotiable Instruments Act, 1881, is hereby affirmed. 23. It is, however, clarified that the dismissal of the present appeal shall not preclude the appellant from pursuing such remedy as may otherwise be available to it in accordance with law before the appropriate forum, subject to all questions of limitation, maintainability and other statutory requirements being considered by the competent forum in accordance with law. Liberty is accordingly granted to the appellant to pursue its remedy, if so advised. 24. The dismissal of the present appeal shall not be construed as an adjudication upon the merits of any independent proceeding that may otherwise be maintainable in accordance with law. 25. Let a copy of this order along with the TCR be sent down forthwith for information and necessary compliance. 26. Urgent photostat certified copy of this order, if applied for, be given to the parties on payment of requisite fees. (Prasenjit Biswas, J.)