9911796707
TMI Blog2003 (1) TMI 528X X X X Extracts X X X X X X X X Extracts X X X X ..... petitio-ners under section 138 of the Negotiable Instruments Act alleging inter alia that the 2nd accused being the Managing Director of the 1st accused company having purchased electrical and hardware material from the complainant company under various purchase orders, and received the material under various invoices dated 28-6-1997, 2-7-1997, 7-7-1997, 10-7-1997, 11-7-1997 and 12-7-1997, after having paid an amount of Rs. 37,000 in two instalments did not pay the balance sum of Rs. 3,82,454.79 Ps. and that after repeated demands the 2nd accused issued a cheque for an amount of Rs. 2,02,000 drawn on the account pertaining to M/s. Sunrise Oil Mills Private Limited and when the same was dishonoured he got a notice dated 9-12-1997, issued and when the same was returned unserved with the endorsement "no person was residing in the above address for the last seven days", he presented it again on 28-1-1998 and again it was dishonoured on the premise of "insufficient funds", and that when he got another legal notice dated 9-2-1998 issued the accused having received the notices on 11-2-1998, failed to pay the cheque amount and thereby committed the offence. The plea of the accused was one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the present complaint cannot be maintained as against Sunrise Oleo Chemicals Limited and secondly that having issued the notice as envisaged under section 138 of the N.I. Act on 9-12-1997 demanding payment covered by the cheque, when it was dishonoured, it could not have been presented again in the month of January 1998 and therefore, the complaint is barred by limitation. 5. Adverting to the first contention of the learned counsel for the revision petitioners, it is manifest that the 1st accused is M/s. Sunrise Oleo Chemicals Limited and the 2nd accused is its Managing Director representing the same. Ex. P1 cheque was drawn on the account being maintained by Sunrise Oil Mills Limited. But the signatory of the cheque is none-else than the 2nd accused. There has been no gainsaying that the 2nd accused is also the authorized signatory of the concern by name "Sunrise Oil Mills Limited". It is nobody's case that Sunrise Oil Mills Limited is indebted to the complainant in any manner for the goods supplied by the complainant. Admittedly pursuant to the various purchase orders placed by the 1st accused company represented by the 2nd accused the complainant supplied under various invoic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omp. Cas. 512. In the former case according to the facts, the cheque was drawn by the petitioner therein in the capacity of the Director of Hisco Steel Private Limited and when a prosecution was launched against the company as well as the petitioner therein when the cheque was dishonoured, he filed the petition in the High Court for quashing the said proceedings against him on the premise that the goods supplied to the company in respect of which the cheque was said to have been issued was defective and therefore, he was not liable and that no notice was served upon him although notice was issued to the company and therefore, he could not be prosecuted. The first contention is not germane for consideration in this case. As regards the second contention, the Calcutta High Court was of the view that M/s. Hisco Steel Private Limited was the maker of the cheque and therefore, the company and the petitioner being its Director can be prosecuted under section 141 of the Negotiable Instruments Act. 6. The learned counsel for the revision petitioners in the instant case seeks to lay emphasis on the finding that the company is the maker of the cheque and therefore, it is liable and inasmuch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplaint through its counsel to the 1st accused company. According to the complainant in his evidence as PW.1 deposed that the said notice was returned unserved with an endorsement "no such person was residing in the said address for seven days". It is no doubt true that the said cover containing the postal endorsement has not been filed in this case. The fact remains that it was a legal notice as envisaged under section 138 of the Negotiable Instruments Act that was got issued by the complainant to the accused when the cheque was dishonoured on the 3rd occasion. However, it has not been controverted when PW.1 deposed in the cross-examination that the cheque was returned with an endorsement as stated supra. From these facts available on record, it has now got to be seen as to whether the complaint filed in this case is within the time or not. It is needless to say at this stage that the complaint is well within time, if the period is reckoned from the date of presentation of the cheque on the fourth occasion in the month of January 1998 and the date of legal notice got issued by the complainant again under the original of Ex. P4 dated 9-2-1998. The only question to be considered is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said notice. Explanation : For the purposes of this section, 'debt or other liability' means a legally enforceable debt or other liability." 9. A perusal of the said provision shows that a cheque drawn by a person on an account maintained by him to another person for the discharge in whole or any part of debt or other liability is dishonoured, such a person is deemed to have committed the offence. The offence would be complete only when the three conditions enjoined under the proviso to section 138 of the Act are satisfied, viz.; (1) that the cheque shall be presented within the period of six months or within the period of its validity whichever is earlier from the date of its drawal; (2) the person in whose favour the cheque is drawn shall make a demand for payment of the said amount by giving a notice in writing to the drawer of the cheque within fifteen days of the receipt of the information as regards the dishonour of the cheque; and (3) the drawer of the cheque fails to make payment of the said amount within fifteen days of the receipt of the said notice. The third condition gains significance having regard to the period of limitation engrafted under section 142 of the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an inference can be drawn only to secure the ends of justice. Here in this case the notice was returned un-served with the endorsement "no such person was residing in the said address for seven days". It is not known from the facts that when another notice was sent in the month of January 1998 under the original of Ex. P4 the said notice was sent to the same address and the same was received. As discussed supra, the returned notice has not been filed in this case. Therefore, in view of the facts peculiar to this case. I am of the considered view that they do not warrant necessary presumption to be drawn in favour of the deemed service. When that notice was not served, no cause of action would arise in accordance with clause (c) under the proviso to section 138 of the Act. Even assuming for a moment that the necessary presumption of deemed service can be drawn in this case on the premise that the party is seeking to avoid the notice, the cheque cannot be presented again so as to give a fresh cause of action. Therefore, in such an event, no occasion for the presentation of the cheque for the fourth time would have arisen at all. Fifteen days period is to be reckoned from the date of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred by limitation and in the latter case no cause of action has arisen to lay the complaint as discussed hereinabove. Therefore, for the above reasons, the presentation of the cheque once again in the month of January 1998 after issuing the requisite legal notice under section 138 of the Act on 9-12-1997 is not warranted, inasmuch as the complainant forfeited his right to present the said cheque again. In view of the said facts when it is not a case, which warrants drawal of a presumption of deemed service, nothing prevents the complainant from issuing a fresh notice. It may be mentioned here that the requisite legal notice as envisaged under clause (b) of the proviso to section 138 shall be issued within fifteen days from the date of receipt of the information from the bank about the dishonour of the cheque. For any reason if that notice got issued within the stipulated period is not served the proviso in my considered view will not bar another notice to be issued, albeit exceeding the period of fifteen days as envisaged under the said proviso, inasmuch as it is only the service of notice accompanied by the default on the part of the drawer of the cheque that ultimately gives the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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