2009 (5) TMI 545 - SC - Companies Law

Whether the notice dated 2-1-2004 was issued within the stipulated period of thirty days from the date of receipt of intimation of the dishonour of cheque? Held that - Appeal allowed. Indisputably, the notice was issued on the 31st day and not within a period of thirty days from the date of receipt of intimation from the bank. If section 9 of the General Clauses Act is not applicable, clause (b) of the proviso appended to section 138 of the Act was required to be complied with by the respondent for the purpose of maintaining a complaint petition against the appellant. In exercise of our jurisdiction under article 142 of the Constitution of India, direct that as the civil liability, of the appellant stands admitted, the said sum received by the respondent need not be refunded.

Issues Involved
1. Validity of the notice issued under Section 138 of the Negotiable Instruments Act.
2. Compliance with the statutory requirements under Section 138 of the Negotiable Instruments Act.
3. Applicability of principles of estoppel or waiver.
4. Jurisdiction of the Supreme Court under Article 142 of the Constitution of India.
5. Civil liability and settlement between the parties.

Issue-wise Analysis

1. Validity of the Notice Issued Under Section 138 of the Negotiable Instruments Act
The core issue was whether the notice dated 2-1-2004 was issued within the stipulated period of thirty days from the date of receipt of intimation of the dishonour of the cheque. The court emphasized that the notice must be issued "within thirty days of the receipt of information" as per the statutory requirement. The notice in question was issued on the 31st day, which did not comply with the statutory period, thus invalidating the notice.

2. Compliance with the Statutory Requirements Under Section 138 of the Negotiable Instruments Act
Section 138 of the Act outlines specific conditions that must be met for an offence to be constituted, including the presentation of the cheque, its dishonour, issuance of a notice within thirty days, and failure to make payment within fifteen days of receipt of the notice. The court reiterated that these conditions are mandatory and must be strictly complied with, given the penal nature of Section 138. The court found that the respondent did not meet the condition of issuing the notice within thirty days, which is crucial for maintaining a complaint under Section 138.

3. Applicability of Principles of Estoppel or Waiver
The respondent argued that the appellant, having entered into a settlement and deposited a sum of Rs. 30,000, should not be allowed to contest the judgment. The court rejected this argument, stating that the appellant's fundamental right to liberty under Article 21 of the Constitution could not be waived or estopped by any settlement. The principles of estoppel or waiver do not apply in criminal proceedings where fundamental rights are at stake.

4. Jurisdiction of the Supreme Court Under Article 142 of the Constitution of India
The court exercised its jurisdiction under Article 142 to ensure complete justice. It directed that the sum received by the respondent as part of the settlement need not be refunded, acknowledging the civil liability admitted by the appellant. This exercise of jurisdiction was aimed at balancing the interests of both parties while ensuring adherence to legal principles.

5. Civil Liability and Settlement Between the Parties
The court took note of the settlement reached between the parties, where the appellant agreed to pay Rs. 30,000 to the respondent, and no further action was to be taken against the judgment. Despite this settlement, the court held that the appellant's liberty could not be compromised, and the procedural lapse in issuing the notice within the stipulated period rendered the criminal proceedings unsustainable. The court allowed the appeal, setting aside the impugned judgment while acknowledging the civil liability of the appellant.

Conclusion
The Supreme Court set aside the impugned judgment on the grounds of non-compliance with the statutory requirements under Section 138 of the Negotiable Instruments Act. The court emphasized the importance of adhering to procedural mandates in penal provisions and upheld the appellant's fundamental rights. The appeal was allowed, and the settlement amount was not required to be refunded, balancing the civil liability and procedural justice.

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