2020 (11) TMI 837 - HC - Indian Laws

Dishonor of Cheque - insufficiency of funds - time limit for presuming service of notice - HELD THAT - Presumption of service of notice within a reasonable time is to be raised. It should be deemed to have been served at best within a period of thirty days from the date of issuance thereof. Meaning thereby, the reasonable period for presumption of service may be up to 30 days from date of its issuance. Hence, in present case, notice issued was said to be served and it was issued on 18.12.2017. It was sent through speed post and it was deemed to be sufficiently served up to 17.1.2018 and within fifteen days payment was not made. Then after within thirty days this complaint was filed. Hence, apparently this complaint was not time barred. On the basis of statement recorded under Section 200 and documentary evidence given under Section 202 of Cr.P.C., offence punishable under Section 138 of N.I. Act was, prima facie, made out. But learned trial Court has failed to appreciate facts and law, has presumed service of notice within 20.12.2017 and has dismissed complaint. This order is apparently erroneous on the face of it and is under mis-exercise of jurisdiction of learned trial Court. Accordingly, this revision merits its allowance. Revision allowed.

Summary

Issues:
1. Interpretation of the provision of Section 138 of the Negotiable Instruments Act regarding the time limit for filing a complaint.
2. Determining the validity of the presumption of service of notice sent by registered post under Section 27 of the General Clauses Act.
3. Application of legal principles regarding the time limit for presuming service of notice in cases of dishonored cheques under Section 138 of the N.I. Act.

Analysis:
1. The case involved a criminal revision filed against the judgment dismissing a complaint under Section 138 of the N.I. Act. The revisionist contended that the trial court failed to consider the provision of the General Clauses Act regarding the time limit for filing a complaint after the dishonor of a cheque. The revision sought to set aside the impugned judgment and remit the matter for further hearing.

2. The revisionist argued that the notice of dishonour of the cheque was sent to the drawer within the prescribed time limits as per Section 138 of the N.I. Act. The court examined the gravity of complaints under the N.I. Act compared to other criminal offenses, emphasizing the civil nature of the offense. The presumption of service of notice sent by registered post was crucial in determining the timeliness of the complaint.

3. The court referred to Section 27 of the General Clauses Act, which provides for the meaning of service by post. It highlighted that the presumption of service of notice sent by registered post can be raised within a reasonable time frame, usually up to thirty days from the date of issuance. The court also cited legal precedents emphasizing the importance of adhering to statutory presumptions regarding service of notices in cases under Section 138 of the N.I. Act.

4. The court found that the trial judge had erred in presuming the service of notice within a shorter period than allowed by law. The complaint was deemed not time-barred based on the correct interpretation of the time limit for presuming service of the notice. Consequently, the court allowed the revision, set aside the impugned order, and remanded the case back to the trial court for further proceedings in accordance with the law.

This detailed analysis of the judgment highlights the key legal issues involved, the arguments presented by the parties, the relevant legal provisions, and the court's reasoning leading to the decision to allow the revision and remand the case for further proceedings.