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TMI Blog2001 (1) TMI 896X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondents. - CRIMINAL APPEAL NO. 957 OF 2000 - - - Dated:- 19-1-2001 - K.T. THOMAS AND R.P. SETHI JJ. Dr. A.M. Singhvi, Mrs. Gauri Rasgotra, Suman Jyoti Khaitan, E.M.S. Anam K. Rajeev, Badri Prasad Singh and K.M.K. Nair for the appearing parties. JUDGMENT Sethi, J. - The complaint filed under section 138 of the Negotiable Instruments Act, 1881 ( the Act ) was quashed by the High Court vide the judgment impugned in this appeal holding that the same was barred by time as the complainant had allegedly failed to file it within the statutory period from the date of accruing of the cause of action. 2. In order to appreciate the legal submissions, a resume of facts of the case is necessary. In its complaint, the appellant-company had stated that Accused Nos. 2 to 9 who are partners of the respondent-firm purchased cement from it and issued cheque for Rs. 9,13,353.84 on 26-5-1998 which was drawn on Karur Vyasa Bank Ltd., Ernakulam Branch. When presented for collection, the cheque was dishonoured on account of insufficiency of funds in the account of the accused. The information regarding non-payment of the cheque amount was communicated by the Bank to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated to facilitate the activities in trade and commerce making provision of giving sanctity to the instruments of credit which could be deemed to be convertible into money and easily passable from one person to another. In the absence of such instruments, including a cheque, the trade and commerce activities, in the present day would, are likely to be adversely affected as it is impracticable for the trading community to carry on with it the bulk of the currency in force. The negotiable instruments are in fact the instruments of credit being convertible on account of legality of being negotiated and are easily passable from one hand to another. To achieve the objectives of the Act, the Legislature has, in its wisdom, thought it proper to make such provisions in the Act for conferring such privileges to the mercantile instruments contemplated under it and provide special penalties and procedure in case the obligations under the instruments are not discharged. The laws relating to the Act are, therefore, required to be interpreted in the light of the objects intended to be achieved by it despite there being deviations from the general law and the procedure provided for the redressal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court, the learned counsel appearing for the respondents has submitted that as upon presentation and dishonour of the cheque by the bank on 28-5-1998 which was intimated to the complainant, a cause of action had accrued, the complaint could be filed only within 30 days from the date of the alleged receipt of the first notice by the accused. He contends that as according to the complainant the postal acknowledgement receipt of the notice was received by the complainant on 15-6-1998, the complaint filed by it after 15-7-1998 was barred by time. As admittedly, the complaint was filed by the appellant on 9-9-1998, it is contended that the same being barred by limitation was rightly quashed by the High Court. However, the learned counsel for the appellant submitted that as the respondents had disclaimed to have received the notice of dishonour sent to them on 13-6-1998, no option was left to the appellant except to present the cheque again and when not paid, serve a fresh notice for the purposes of making out a case and offence within the meaning of section 138. 6. To constitute an offence under section 138, the complainant is obliged to prove its ingredients which include the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct invites a liberal interpretation for the person who has the statutory obligation to give notice because he is presumed to be the loser in the transaction and it is for his interest the very provision is made by the Legislature. The words in clause ( b ) of the proviso to section 138 of the Act show that the payee has the statutory obligation to make a demand by giving notice. The thrust in the clause is on the need to make a demand . It is only the mode for making such demand which the Legislature has prescribed. A payee can send the notice for doing his part for giving the notice. Once it is dispatched, his part is over and the next depends on what the sendee does. It is well-settled that a notice refused to be accepted by the addressee can be presumed to have been served on him ( vide Harcharan Singh v. Shivrani 1981 (2) SCC 535 and Jagdish Singh v. Natthu Singh 1992 (1) SCC 647. Here the notice is returned as unclaimed and not as refused. Will there by any significant difference between the two so far as the presumption of service is concerned ? In this connection a reference to section 27 of the General Clauses Act will be useful. The section reads thus : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt within the prescribed period and the period of limitation starts to run which cannot be stopped on any account. This Court emphasised that needless to say the period of one month from filing the complaint will be reckoned from the date immediately falling the day on which the period of 15 days from the date of the receipt of the notice by the drawer expires [Emphasis supplied]. 9. In STL Import, USA v. Exim Aides Silk Exporters [1999 (4) SCC 587] the respondents therein was an exporter of finished silk goods and the appellant company based at USA was an importer. The appellant owed a certain amount towards sale consideration of goods exported to it by the respondent and issued some cheque in their favour. Two of such cheques were returned dishonoured with reason no sufficient funds . The respondents sent a notice to the appellant-company by fax on 11-6-1996 and notice by registered post on the next day which was received by the appellant on 25-6-1996. The respondents filed a complaint before the Magistrate in respect of the said cheques on 8-8-1996. The appellant contended that the cause of action having accrued on the expiry of 15 days from the date of notice sent by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he date when the notice sent by fax reached the drawer of the cheque the period of 15 days (within which he has to make the payment) has started running and on the expiry of the period the offence is completed unless the amount has been paid in the meanwhile. If no complaint was filed within one month therefrom the payee would stand forbidden from launching a prosecution thereafter, due to the clear interdict contained in section 142 of the Act. " 10. It is conceded in this case that in response to the notice sent by the appellant through their counsel on 13-6-1998, the respondents herein, vide their letter dated 20-6-1998, intimated received one empty envelope without any content in it. Therefore request you to kindly send the content, if any . This intimation was received by the appellant on 30-6-1998, the day on which the period of limitation on the basis of earlier notice was to expire. They had exercised the option to accept the averments made by the respondents in their letter dated 20-6-1998 and issue a fresh notice after again presenting the cheque. The respondents have not denied the issuance of their letter dated 20-6-1998. Despite admitting its contents, they opte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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