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TMI Blog2009 (5) TMI 545X X X X Extracts X X X X X X X X Extracts X X X X ..... granted. 2. This appeal is directed against a judgment and order dated 3-2-2007 passed by the Madurai Bench of the Madras High Court in Crl. Revision No. 849 of 2005 whereby and whereunder the Criminal Revision application filed by the appellant herein was dismissed affirming the judgment of the learned Principal Session Judge, Tiruchirapalli dated 8-11-2005 passed in Crl. A. No. 87/2005, preferred against the judgment dated 3-5-2005 in CC No. 69/2004 by the learned Judicial Magistrate III, Tiruchirapalli. 3. On or about 14-8-2003, appellant borrowed a sum of Rs. 1,00,000 for the purpose of his business as loan from the complainant-respondent. The said amount was to be repaid within a period of three months. On or about 20-11-2003 the appellant handed over a cheque bearing No. 0652756 dated 27-11-2003 for a sum of Rs. 1,00,000 in favour of the respondent. The said cheque was presented by the complainant for collection to his banker, namely, UCO Bank, Trichy Main Branch on 27-11-2003. It was dishonoured with the remarks "insufficient funds" on 2-12-2003. Information thereabout was received by the respondent on 3-12-2003. 4. On 2-1-2004, the respondent issued a legal not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque, or with both : Provided that nothing contained in this section shall apply unless ( a )the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; ( b )the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and ( c )the drawer of such cheque fails to make the payment of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... But the Legislature says that failure on the part of the drawer to pay the amount should be within 15 days "of the receipt" of the said notice. It is, therefore, clear that "giving notice" in the context is not the same as receipt of notice. Giving is a process of which receipt is the accomplishment. It is for the payee to perform the former process by sending the notice to the drawer at the correct address. ****** 14. It is one thing to say that sending of a notice is one of the ingredients for maintaining the complaint but it is another thing to say that dishonour of a cheque by itself constitutes an offence. For the purpose of proving its case that the accused had committed an offence under section 138 of the Negotiable Instruments Act, the ingredients thereof are required to be proved. What would constitute an offence is stated in the main provision. The proviso appended thereto, however, imposes certain further conditions which are required to be fulfilled before cognizance of the offence can be taken. If the ingredients for constitution of the offence laid down in the provisos ( a ), ( b ) and ( c ) appended to section 138 of the Negotiable Instruments Act intended to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted material irregularity in not referring to the aforesaid evidence which was recorded by the Metropolitan Magistrate. Section 138( b ) [of the Act] inter alia provides that the payee has to make demand for the payment of money by giving a notice to the drawer of the cheque within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid . So fifteen days are to be counted from the receipt of information regarding the return of the cheque as unpaid. In the present case, it is the say of the complainant that the cheque was presented for encashment on 12th, it was returned to the bank on 13th and information was given to the complainant only on 17th, as 14th, 15th and 16th were Pongal holidays. The learned counsel fairly pointed out that in the complaint it has been stated that the complainant had received intimation with regard to the return of the said cheque from his banker on 13-1-1994. However, he submitted that this is an apparent mistake and for explaining that mistake the appellant has led the evidence before the trial court. Undisputedly, he pointed out that in the State of Tamil Nadu, 14-1-1994 to 16-1-1994 there were ..... X X X X Extracts X X X X X X X X Extracts X X X X
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