2020 (8) TMI 213 - HC - Indian Laws

Dishonor of Cheque - insufficiency of funds - time limitation - first contention of the revisionist is that the notice of the complainant dated 09.03.2015 does not fulfill the condition as provided under the proviso 'b' to Section 138 of Negotiable Instruments Act - interpretation given to proviso (b) of Section 138 of NI - HELD THAT - The argument extended by the learned counsel for the revisionist is that the notice dated 09.03.2015 issued by the complainant only contained 7 days' time period, which was provided to the revisionist to pay the amount in compliance of the provisions contained under proviso 'c' to Section 138, is absolutely a misconception, which has been drawn by the revisionist attracting the implications of the proviso 'b' of Section 138 of the Negotiable Instruments act for the purposes of complying the conditions of the proviso 'c' to Section 138. Both the proviso had been legislated to meet the different intention and purposes to be complied prior to initiation of proceedings by registering the complaint - Both the provisos are independent to one another. The intention and purpose of the proviso 'b' is only a liability or the limitation, which has been imposed and casted upon the complainant for filing the complaint on the receipt of information from the Bank of the dishonour of cheque. Hence, the 30 days' period would start running against him, i.e. the complainant, immediately after the receipt of notice issued by the Bank, its not for the purposes of fulfilling the conditions of proviso 'c' of Section 138 of Negotiable Instruments Act. On simple reading of the proviso, the Court is of the opinion that, the said proviso 'b' does not provide that it is a 30 days' time period, which has to be mentioned in the notice issued by the complainant to the revisionist for complying with the conditions under the proviso 'c' to Section 138 as a condition precedent for filing of complaint provided in proviso 'b'. The proviso 'c' to Section 138 it only provides that as soon as the notices are received by the accused the conditions contained therein has to be complied with by the revisionist within period of 15 days from the date of its receipt, i.e. the notice - The very fact that the proceedings itself was initiated at a much belated stage, i.e. only on 03.04.2015, the implications drawn from clause 'c' to the proviso to Section 138 will not be attracted in the instant case. Consequently, the said argument of the learned counsel for the revisionist is turned down and is not accepted by this Court. Non-reference of the amount claimed by the complainant in the proceedings under Section 138 of the Negotiable Instruments Act - HELD THAT - The said contention is also not accepted. Hence, both the fault in the proceedings held concurrently before the courts below, which was sought to be pressed upon by the revisionist to the effect that the complaint itself would be defective in the absence of there being mentioning of the amount claimed by the respondent in his notice dated 19.03.2015 is otherwise also not sustainable and contrary to the documents on record. Besides the above two issues, no other ground has been pressed by the revisionist. Criminal revision dismissed.

Summary

Issues:
Challenge to judgment and order dated 26.10.2016 convicting the revisionist under Section 138 of Negotiable Instruments Act. Appeal dismissal by Additional Sessions Judge. Compliance with conditional order for depositing penalty. Defects in notice and complaint regarding time period and amount claimed.

Analysis:
1. The revisionist challenged the judgment convicting him under Section 138 of Negotiable Instruments Act. The appeal was dismissed by the Additional Sessions Judge. The revision was admitted with a conditional order to deposit a sum within a month to keep the judgment in abeyance.

2. The revisionist argued defects in the notice and complaint. The notice dated 09.03.2015 was said to have an insufficient time period. However, the court found that the notice was served within the stipulated 30-day period as per the Act, rejecting the argument.

3. The second argument was about the complaint not mentioning the amount claimed. The court found that the complaint did specify the amount sought to be claimed, making this argument invalid.

4. No other grounds were presented by the revisionist. The court upheld the judgments of conviction by both lower courts. The revision was dismissed, and the revisionist was to be taken into custody for non-compliance with the interim order.

5. The court concluded that the revision lacked merit and was dismissed. The revisionist's non-compliance with the interim order led to immediate custody. The judgment of conviction under Section 138 of Negotiable Instruments Act was upheld against the revisionist.