2019 (5) TMI 1912 - SC - Indian Laws

Dishonor of Cheque - second legal notice sent beyond a period of thirty days of the receipt of the memo of dishonour - delay occurred in the institution of the complaint only for the period after 6 April 2016 after the issuance of the second notice - section 138 of NI Act - HELD THAT - In the present case, the facts indicate that the Appellant issued a legal notice on 31 December 2015. This was within a period of thirty days of the receipt of the memo of dishonour on 4 December 2015. Consequently, the requirement stipulated in proviso (b) to Section 138 was fulfilled. Proviso (c) spells out a requirement that the drawer of the cheque has failed to make payment to the holder in due course or payee within fifteen days of the receipt of the notice. The second Respondent does not as a matter of fact, admit that the legal notice dated 31 December 2015 was served on him. The Appellant has in the complaint specifically narrated the circumstance that despite repeated requests to the postal department, no acknowledgment of the notice was furnished - Cognizant as we are of the requirement specified in proviso (b) to Section 138, that the notice must be issued within thirty days of the receipt of the memo of dishonour, we have proceeded on the basis that it is the first notice dated 31 December 2015 which constitutes the cause of action for the complaint Under Section 138. The High Court has merely adverted to the presumption that the first notice would be deemed to have been served if it was dispatched in the ordinary course. Even if that presumption applies, we are of the view that sufficient cause was shown by the Appellant for condoning the delay in instituting the complaint taking the basis of the complaint as the issuance of the first legal notice dated 31 December 2015 - the impugned judgment of the High Court is unsustainable. Appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
1. Delay in filing the complaint under Section 138 of the Negotiable Instruments Act, 1881.
2. Validity of legal notices issued in relation to dishonored cheques.
3. Condonation of delay in filing the complaint by the Chief Judicial Magistrate.
4. Interpretation of Section 138 of the Negotiable Instruments Act, 1881.

Issue 1: Delay in filing the complaint under Section 138:
The appeal before the Supreme Court arose from the quashing of an order taking cognizance of an offense under Section 138 of the Negotiable Instruments Act, 1881. The High Court had quashed the proceedings on the grounds that the complaint was not filed within the statutory period of thirty days as prescribed under Section 138. The appellant contended that the delay was condoned by the Chief Judicial Magistrate under Section 142, and therefore, the High Court erred in quashing the proceedings.

Issue 2: Validity of legal notices issued for dishonored cheques:
The dispute revolved around two cheques that were dishonored by the bank, leading to legal notices being issued. The appellant issued a legal notice on 31 December 2015, within thirty days of receiving the memo of dishonor. The second respondent argued that the second legal notice dated 26 February 2016 was beyond the stipulated period and could not be the basis for a valid complaint. The court analyzed the requirements of Section 138, emphasizing the importance of timely notices in such cases.

Issue 3: Condonation of delay by the Chief Judicial Magistrate:
The Chief Judicial Magistrate had condoned the delay in filing the complaint, and the Sessions Judge rejected the revisional proceedings. However, the High Court quashed the proceedings citing the delay in filing the complaint. The appellant argued that sufficient cause was shown for the delay in instituting the complaint, and the High Court's reliance on the presumption of service of the first notice was misplaced. The Supreme Court examined the reasons provided by the appellant for the delay and found them adequate for condonation.

Issue 4: Interpretation of Section 138 of the Negotiable Instruments Act, 1881:
The court delved into the provisions of Section 138, emphasizing the timeline for issuing notices and filing complaints in cases of dishonored cheques. It highlighted the necessity of adhering to the statutory requirements while also considering the circumstances that may justify condonation of delays in filing complaints. The court ultimately held that the High Court's judgment was unsustainable, allowed the appeal, and restored the complaint to the trial court for further proceedings, refraining from expressing any opinion on the merits of the case at that stage.

This detailed analysis of the judgment showcases the intricate legal considerations and interpretations made by the Supreme Court in addressing the issues raised in the appeal related to the dishonor of cheques and the subsequent legal proceedings under the Negotiable Instruments Act, 1881.