2023 (4) TMI 1008 - HC - Indian Laws

Dishonour of Cheque - date of dishonor of cheque not known - statutory notice prior to lodging of prosecution under Section 138 of the Negotiable Instruments Act was given in time or not - whether trial magistrate was correct in observing that statutory notice was not given in time from the date of information as to dishonour? - HELD THAT - It is true that the Complainant has not filed any document to show on which date he has deposited the cheque in Cosmos Bank. Generally, it is accompanied by pay-in-slip and its counter file remained with the payee. If we consider the 24/01/1995 as the relevant date, the notice given at Exh. 25 on 03/02/1995 is within the period of 15 days from the 24/01/1995. That date is reflected in account statement. It is deposed by the bank witness. The bank witness was also cross-examined on behalf of the Complainant. He admits that the customers need to be informed about dishonour of the cheque immediately. If there is debit entry on 14/11/1994, certainly it can be said that there is enormous delay in informing the complainant on 24/01/1995. The accused tried to bring on record about relationship of the Complainant and the bank witness. There is nothing wrong if they are knowing each other because Complainant is their customer. It has furthermore testified during cross-examination that the both are resident of the same village. Learned Advocate for the Respondent relied upon the judgment in the case of Kamlesh Kumar Vs. State of Bihar and Anr. 2014 (1) TMI 736 - SUPREME COURT . Learned Advocate Shri Kharkar for the Appellant tried to differentiate facts of that case and the present facts. In that case cheque was presented on two occasions and notice was issued from the date of knowledge of the dishonour and it was issued in pursuance of the second presentment. On 10/11/2008, when cheque was presented, the Complainant got knowledge of dishonour on account of un-availability of the sufficient balance. Whereas notice was issued on 17/12/2008 that is after the period of 30 days. (at that time the period is about 30 days) and hence it was held beyond the prescribed period. Complainant also filed an affidavit thereby stating that bank has issued memo and it was received on 17/11/2008. He wants to plead that from 17/11/2008, the notice was given in time. (para no. 13). However it was not accepted by the Hon ble Supreme Court and the knowledge received on 10/11/2008 was considered as starting point for the calculating the prescribed period. If the Complainant wants the Court to believe the date of 24/01/1995 as knowledge of the dishnour, he was bound to lay a foundation in the evidence, so as to connect this cheque return memo to the actual date of presentment. This has not been done. Even though, bank witness has said about cheque return memo dated 24/01/1995, it does not relieve the complainant about proving necessary facts about deposit and receipt of memo. One does not know whether complainant has received that memo. Court cannot accept the arguments just on the basis of certain piece of the evidence, unless Complainant in his evidence has deposed accordingly. It is not found that findings given by the trial court can be faulted - appeal dismissed.

Summary

Issues involved:
The appeal concerns the correctness of the trial magistrate's observation that the statutory notice was not given in time from the date of information about the dishonour of the cheque.

Judgment details:

Issue 1: Existence of Legally Recoverable Debt or Liability
The trial court acquitted the accused under Section 138 of the Negotiable Instruments Act due to the non-issuance of the mandatory notice in time, which led to non-compliance. The judgment framed the issue around the necessary ingredients of the offense, including the existence of a legally recoverable debt or liability, the reason for dishonour, issuing a statutory notice in time, and filing the complaint within the specified period.

Issue 2: Timeliness of Statutory Notice
The crux of the appeal was whether the trial magistrate was correct in finding that the statutory notice was not given in time from the date of dishonour information. The dates of deposit and return of the cheque were crucial in determining the timeliness of the notice, with discrepancies between the evidence presented by the complainant and the bank witness.

Issue 3: Evidence and Inferences
The evidence presented by both sides revolved around the dates of cheque deposit, dishonour, and the issuance of the statutory notice. The court considered the oral and documentary evidence, including witness testimonies and account statements, to infer the sequence of events leading to the alleged non-compliance with the statutory notice requirement.

Key Points:
- The complainant's failure to establish a clear timeline for cheque deposit raised doubts about the timeliness of the statutory notice.
- Discrepancies between the dates provided by the complainant and the bank witness regarding cheque deposit and dishonour added complexity to the case.
- The court emphasized the importance of laying a foundation in evidence to support claims, especially regarding crucial dates and events related to the case.
- The judgment highlighted the need for the complainant to prove the connection between the cheque return memo date and the actual presentment date to establish the timeliness of the statutory notice.

In conclusion, the appeal was dismissed as the court found no merit in challenging the trial court's findings on the timeliness of the statutory notice issuance.