2020 (2) TMI 172 - HC - Indian Laws

Dishonor of Cheque - insufficiency of funds - service of notice - the legal notice was sent beyond 30 days of knowledge of the dishonour of cheque - HELD THAT - In the present case, the complainant has already led his evidence and it has come on record that on receipt of the return memo, the complainant immediately got in touch with the accused and on not receiving any satisfactory answer, the legal notice was given on 06.02.2017. From a reading of the above, it is apparent that the legal notice of demand was issued beyond 30 days from the date of the return memo. The complaint is not maintainable and the same is accordingly quashed - application disposed off.

Summary

Issues involved:
Quashing of complaint case under Section 138 of Negotiable Instruments Act, 1881 based on delay in sending legal notice, misuse of cheque books, and allegations of filing the complaint to pressurize withdrawal of another complaint.

Detailed Analysis:

1. Quashing of Complaint Case: The petitioner sought quashing of the complaint case under Section 138 of the Negotiable Instruments Act, 1881, arguing that the legal notice was sent beyond 30 days of knowledge of the dishonored cheque. The petitioner contended that the offense under Section 138 was not made out as the conditions of the proviso to Section 138 were not satisfied. Reference was made to judgments in Kamlesh Kumar v. State of Bihar and Dheeraj Jain v. State, emphasizing the importance of timely legal notice to maintain a complaint under Section 138.

2. Allegations of Misuse of Cheque Books: The petitioner's counsel further contended that the complaint was filed to pressurize the petitioner to withdraw a complaint filed under the Delhi Shops and Establishment Act, 1954. It was alleged that the complainant misused the petitioner's cheque books by depositing and withdrawing cash amounts, leading to a complaint by the petitioner to the bank's Branch Manager.

3. Legal Precedents and Interpretation: The judgment referred to legal precedents to establish the importance of timely legal notices in cases under Section 138 of the Negotiable Instruments Act. The court cited the Supreme Court's observations in Kamlesh Kumar and Sivakumar cases, emphasizing the significance of fulfilling the conditions laid down in the proviso to Section 138 for maintaining a complaint. The court also highlighted the requirement of issuing notices within the specified time frame as per the proviso clauses.

4. Decision and Disposal: After analyzing the evidence presented, including the complaint, affidavit, and legal notice, the court found that the legal notice of demand was issued beyond 30 days from the date of the return memo. Consequently, the court held that the complaint was not maintainable and proceeded to quash the same. The pending application was also disposed of, with directions to communicate the order to the trial court for further action.

In conclusion, the judgment addressed the issues of quashing a complaint case under Section 138 of the Negotiable Instruments Act, highlighting the importance of timely legal notices and the conditions specified in the proviso clauses. The decision was based on a detailed analysis of the evidence presented, ultimately leading to the quashing of the complaint due to the delay in issuing the legal notice.