9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (11) TMI 726 - HC - Indian LawsDishonor of Cheque - statutory period prescribed under the provisions of Section 138 of the Negotiable Instruments Act, 1881 not satisfied - legally enforceable debt or not - presumptions regarding existing debt or not - whether on the date of filing of the complaint case under Section 138 of the Negotiable Instruments Act, 1881, the cause of action had crystalized or the complainant itself was pre-mature? HELD THAT - This Court finds that admittedly, there is no evidence of service of the legal notice to the petitioner and accordingly, the learned courts below has considered deemed service of notice by referring to the General Clauses Act. This Court is of the considered view that presumption regarding service of notice sent through registered cover can be drawn only upon expiry of 30 days from the date of dispatch of notice as has been held by the Hon ble Supreme Court in SUBODH S. SALASKAR VERSUS. JAYPRAKASH M. SHAH ANR 2008 (8) TMI 795 - SUPREME COURT . In the said judgment, the notice was sent through speed post and although the actual date of service of notice was not known, the Complainant proceeded on the basis that the same was served within the reasonable period. It was held that if the presumption of notice within the reasonable period is raised, the deemed service at best can be taken to be 30 days from the date of its issuance and the accused was required to make payment in terms of the said notice within 15 days thereafter and the complaint petition therefore could have been filed after expiry of 15 days given to the accused for payment of money after receipt of notice. This Court finds that the law has been well settled by the aforesaid judgement that the cause of action for filing a Complaint case under Section 138 of the N.I. Act could not arise prior to expiry of 15 days from the date of service of the legal notice on the accused - this Court also finds that even if the best case of the Complainant is taken into consideration, then the date of dispatch of the legal notice regarding bouncing of the cheque by the complainant is 19.11.2009 (through registered cover), the date of deemed service of legal notice upon the petitioner would be 18.12.2009 (30 days from dispatch of legal notice) and 15 days from the date of service of notice would expire only on or about 02.01.2010 and present complaint case has been filed on 22.12.2009 i.e. on the 4th day from the deemed service of notice, if taken as 18.12.2009. The condition precedent for filing the case under Section 138 of the Negotiable Instruments Act, 1881, having not been satisfied, the Complaint itself was not maintainable on the day it was filed and accordingly, the petitioner could not have been convicted under the said Section. The question of any presumption regarding existing debt under Section 139 of the Negotiable Instruments Act, 1881 also could not arise as the Complaint itself was not maintainable - petitioner is acquitted from the charge thereunder and is discharged from the liability of the bail bonds. Petition allowed.
Issues Involved:
1. Prematurity of the Complaint under Section 138 of the Negotiable Instruments Act, 1881. 2. Service of Legal Notice and Deemed Service. 3. Cause of Action and Compliance with Statutory Timelines. Issue-wise Detailed Analysis: 1. Prematurity of the Complaint under Section 138 of the Negotiable Instruments Act, 1881: The primary contention raised by the petitioner’s counsel was that the Complaint was premature as the statutory period prescribed under Section 138 of the Negotiable Instruments Act, 1881 was not duly satisfied. The cheque issued on 24.10.2009 was dishonored on 10.11.2009, and the legal notice was dispatched on 19.11.2009. The Complaint was filed on 22.12.2009, which was argued to be premature as it was filed before the expiry of the 15-day period post deemed service of the notice. The court found that the Complaint, filed on the 4th day from the deemed service of notice, was indeed premature and hence not maintainable as the cause of action had not crystalized. 2. Service of Legal Notice and Deemed Service: The learned courts below had considered deemed service of the notice by referring to the General Clauses Act. The court held that presumption regarding service of notice sent through registered cover can be drawn only upon expiry of 30 days from the date of dispatch of notice, as established by the Supreme Court in Subodh S. Salaskar vs. Jayprakash M. Sah and Another. In this case, the deemed service of the legal notice was taken as 18.12.2009, and the Complaint was filed on 22.12.2009, which was before the expiry of the 15-day period required for the drawer to make the payment. 3. Cause of Action and Compliance with Statutory Timelines: The court emphasized that for a Complaint under Section 138 to be maintainable, all the conditions stipulated in the proviso to Section 138 must be satisfied, including the 15-day period post service of notice. The court referred to the Supreme Court judgment in Yogendra Pratap Singh vs. Savitri Pandey and Another, which clarified that a Complaint filed before the expiry of this 15-day period is premature and not maintainable. The court concluded that the Complaint in this case was filed prematurely as the statutory timelines were not adhered to, and thus, the Complaint was non-est in the eyes of law. Conclusion: The court set aside the judgments of the lower courts, acquitted the petitioner, and discharged him from the liability of the bail bonds. The court also noted that the Complainant could file a fresh Complaint explaining the delay. The court appreciated the assistance provided by the Amicus Curiae and directed the payment of his legal remuneration. Final Orders: - The judgments dated 24.10.2011 and 10.12.2010 were set aside. - The petitioner was acquitted and discharged from bail bonds. - The Complainant was allowed to file a fresh Complaint if desired. - The court recorded appreciation for the Amicus Curiae and directed payment for his services. - The lower court records were ordered to be sent back, and the order was to be communicated to the lower court through FAX/e-mail.
|
