2014 (6) TMI 1074 - HC - Indian Laws

Dishonour of Cheque - insufficient funds - legally enforceable debt or not - rebuttal of presumptions - due service of statutory notice demanding payment within 15 days intimation of dishonour of cheque - complaint filed within one month after service of notice i.e., one month after waiting 15 days from date of service or deemed service or not - HELD THAT - Rule 74 of the Postal Rules speaks, though there is no material to say that they got statutory force at least in guiding for internal governance regarding the service of the Registered letters, speaks regarding period of detention or treatment of undeliverable articles in post office that where the addressees of which are not known or have left the station of address without intimating their fresh address to the post office or are not found at the address given on articles are ordinarily kept in deposit in the head, sub or branch post office to which they are addressed, for a period of seven days after all enquiries to find the addressee, have proved unsuccessful. There is a deemed service. Here, the question arises is what is the date of deemed service, is it 19.09.2005 or after end of the seven days of waiting for return. In the above Rule 74 of the Postal Rules what is required is to deposit for seven days and return thereafter to the sender. That is different from the deemed service for purpose of considering 15 days time under Section 138 N.I. Act. As per the expression in C.C. Alavi Haji's case 2007 (5) TMI 335 - SUPREME COURT there is a deemed service from continuous absence. For the purpose of deemed service, it is sufficient to say the date of intimation or the postman went to the address for delivery or absence of or unclaimed or refused. Here, for all practical purposes there is a registered letter posted duly to the correct address for endorsement by the sender. The postal authorities are agents of the sendee to deliver and if that is the case, irrespective of seven days waiting, otherwise required from the internal guidelines and instructions, leave about its statutory force to bind the parties, who sent the notice to whom, the first intimation was dated 19.09.2005 and from there the 15 days time commences, leave about the requirement of waiting for seven days for return back to the sender the cover. When such is the case, even it is reckoned from the date of return i.e., on 24.09.2005, as per the endorsement it is beyond 15 days of statutory waiting for payment for accrual of cause of action and 30 days for filing of the complaint. The trial Court referring the judgment of Hon'ble Supreme Court in Saketh India Ltd., and others v. M/s. India Securities Limited and other 1999 (3) TMI 591 - SUPREME COURT in this regard as per Section 12 of the Limitation Act and 8 and 9 of the Act, came to the conclusion that the complaint is beyond the limitation period. For this Court while sitting in appeal, there is nothing to interfere in saying the complaint was not filed within statutory time and thereby filed after expiry of the cause of action i.e., one month after accrual of cause of action and is barred by limitation. The Criminal Appeal is dismissed.

Summary

Issues Involved:
1. Whether there is due service of statutory notice demanding payment within 15 days of dishonour of cheque.
2. Whether the complaint was filed within one month after the service of notice.
3. How far the accused rebutted the presumptions available against him.

Issue-wise Detailed Analysis:

1. Due Service of Statutory Notice:
The appellant's case is that the accused issued a cheque, which was dishonoured due to insufficient funds. A legal notice demanding payment was sent and returned with the endorsement "addressee continuously absent." The trial court held that the complaint was barred by limitation as it was not filed within one month after the expiry of 15 days of deemed service of notice. The court examined the provisions of the N.I. Act, which create a deeming offence under Section 138, and the procedural requirements under Sections 138 to 142 for issuing notice and filing a complaint. The court referred to the case of C.C. Alavi Haji v. Palapetty Muhammed, which established the principle of deemed service of notice. The court concluded that the first intimation date (19.09.2005) was the date of deemed service, and the complaint was not filed within the statutory time frame.

2. Timeliness of Complaint Filing:
The court scrutinized the timeline of events, particularly the dates of sending, returning, and receiving the legal notice. The notice was sent on 16.09.2005 and returned on 24.09.2005 with endorsements of absence on various dates. The court referred to Rule 74 of the Postal Rules, which mandates a seven-day waiting period for undeliverable articles before returning them to the sender. The court determined that the 15-day period for payment commenced from the first intimation date (19.09.2005), and the complaint should have been filed within one month from the end of this period. The court found that the complaint was filed beyond this statutory period, making it barred by limitation.

3. Rebuttal of Presumptions by Accused:
The court discussed the presumptions under Sections 118(a) and 139 of the N.I. Act, which are rebuttable in nature. The accused must raise a probable defense to rebut these presumptions. The court referred to various judgments, including K.N. Beena v. Muniyappan and Narayan Menon v. State of Kerala, which emphasized the need for the accused to present cogent evidence to rebut the presumption of a legally enforceable debt. The court noted that the accused did not provide sufficient evidence to rebut the presumption and failed to reply to the statutory notice, which weakened his defense. Despite this, the court's decision primarily hinged on the issue of the complaint being time-barred.

Conclusion:
The court upheld the trial court's judgment, concluding that the complaint was filed beyond the statutory period and was therefore barred by limitation. The appeal was dismissed, and any pending miscellaneous petitions in the appeal were closed.