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TMI Blog2006 (5) TMI 441X X X X Extracts X X X X X X X X Extracts X X X X ..... ty not in station. Arrival not known." The representative facts are taken from Criminal Appeal No. 1255 of 2004. The case of the complainant-respondent is that the appellant had issued a cheque in his favour for a sum of Rs.1,25,000/- on November 7, 2003. The cheque was presented to the bank for encashment but the same was returned on March 6, 2004 with the endorsement "funds insufficient". The respondent issued a legal notice to the appellant calling upon him to make the payment. The said notice was sent on March 17, 2004 by registered post but the same was returned unserved on March 25, 2004 with an endorsement "party not in station arrival not known". The respondent thereafter filed a complaint under Section 138 of the Act on May 4, 2004. By order dated June 2, 2004 the learned Magistrate passed orders under Section 204 of the Code of Criminal Procedure registering a criminal case and issuing process against the appellant. The appellant filed an application under Section 482 of the Code of Criminal Procedure before the High Court which has been dismissed by the impugned order. From the judgment of the High Court it appears that the only point argued before the High Court was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se circumstances the appellant could pray for quashing of the proceedings under Section 482 of the Code of Criminal Procedure. Under Section 138 of the Act, where a cheque issued by the drawer in the discharge of any debt or any other liability is returned by the bank unpaid, because the amount standing to the credit of that account is insufficient to honour the cheque, the said person is deemed to have committed an offence. The is subject to proviso to Section 138 which provides that the cheque should have been presented to the bank within the period of six months from the date of which it is drawn or within the period of its validity, whichever is earlier. The payee must also make a demand for the payment of the said amount by giving a notice in writing to the drawer of the cheque within 30 days of the receipt of the information by him from the bank regarding the return of the cheque unpaid. If despite this demand, the drawer fails to make the payment within fifteen days of the receipt of the notice, a cause of action arises for prosecuting him for the offence punishable under Section 138 of the Act. Section 142 provides that the court shall take cognizance of an offence punisha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er in a case of this nature, where the postal endorsement shows that the notice could not be served on account of the non availability of the addressee, a cause of action may still arise for prosecution of the drawer of the cheque on the basis of deemed service of notice under clause (c) of proviso to Section 138 of the Act. In our view this question has to be answered by reference to the facts of each case and no rule of universal application can be laid down that in all cases where notice is not served on account of non-availability of the addressee, the court must presume service of notice. It is well settled that in interpreting a statute the court must adopt that construction which suppresses the mischief and advances the remedy. This is a rule laid down in Heydon's case (76 ER 637) also known as the rule of purposive construction or mischief rule. Section 138 of the Act was enacted to punish those unscrupulous persons who purported to discharge their liability by issuing cheques without really intending to do so, which was demonstrated by the fact that there was no sufficient balance in the account to discharge the liability. Apart from civil liability, a criminal liability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eason, such as his non availability at the time of delivery, or premises remaining locked on account of his having gone elsewhere etc. etc. If in each such case the law is understood to mean that there has been no service of notice, it would completely defeat the very purpose of the Act. It would then be very easy for an unscrupulous and dishonest drawer of a cheque to make himself scarce for sometime after issuing the cheque so that the requisite statutory notice can never be served upon him and consequently he can never be prosecuted. There is good authority to support the proposition that once the complainant, the payee of the cheque, issues notice to the drawer of the cheque, the cause of action to file a complaint arises on the expiry of the period prescribed for payment by the drawer of the cheque. If he does not file a complaint within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138 of the Act, his complaint gets barred by time. Thus, a person who can dodge the postman for about a month or two, or a person who can get a fake endorsement made regarding his non availability can successfully avoid his prosecution because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th February, 2003. Thereafter the postal article remained unclaimed till 15th February, 1993 and it was returned to the sender with a further endorsement "unclaimed". The complaint filed by the drawee was dismissed on the ground of territorial jurisdiction as also on the ground that since the notice had not been received by the drawer, there was no cause of action for filing the complaint. On appeal, the High Court reversed the order of acquittal. The appellant approached this Court by special leave. This Court held in favour of the respondent on the question of territorial jurisdiction. On the question of notice this Court considered the scheme of Section 138 of the Act by particular reference to clauses (b) and (c) of the proviso thereof. In view of the legislative scheme it was held, the failure on the part of the drawer to pay the amount should be within 15 days "of the receipt" of the said notice. It was clear that the "giving of notice" in the context was not the same as the receipt of notice. "Giving" was the process of which the "receipt" was the accomplishment. This Court then observed : "If a strict interpretation is given that the drawer should have actually received th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was dishonoured on May 28, 1998 of which intimation was received by the appellant on June 2, 1998. On June 13, 1998 the appellant issued to the respondent and one of its partners the statutory notice under Section 138 of Act and received the postal acknowledgement of the notice on June 15, 1998 which was the last date of limitation on the basis of the said notice. However, the appellant again presented the cheque on July 1, 1998 which was again dishonoured on July 2, 1998. The appellant sent a second notice of dishonour of the cheque but the respondent having received the notice on July 27, 1998 did not make the payment. On September 9, 1998 the appellant filed a complaint. The respondent moved a petition before the High Court for quashing of the complaint under Section 482 of the Code of Criminal Procedure on the ground that it was time barred since acknowledgement of the first notice was received by the complainant on June 15, 1998 and the complaint was filed after July 15, 1998. The appellant on the other hand contended that the respondent's having denied receipt of the first notice, the only course open to the appellant was to present the cheque again. The High Court quashed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rporated in Section 27 of the General Clauses Act will apply to a notice sent by post, and it would be for the drawer to prove that it was not really served and that he was not responsible for such non- service. This Court reiterated the principle laid down in K. Bhaskaran vs. Sankaran Vaidhyan Balan and another case (supra). This Court while dismissing the appeal concluded :- "Burden is on the complainant to show that the accused has managed to get an incorrect postal endorsement made. What is the effect of it has to be considered during trial, as the statutory scheme unmistakably shows the burden is on the complainant to show the service of notice. Therefore, where material is brought to show that there was false endorsement about the non-availability of noticee, the inference that is to be drawn has to be judged on the background facts of each case." In (2005) 4 SCC 417 : Prem Chand Vijay Kuamr vs. Yashpal Singh and another, the Court relied upon the principle laid down in (1998) 6 SCC 514 : Sadanandan Bhadran vs. Madhavan Sunil Kumar which was followed in Dalmia Cement (Bharat) Ltd. vs. Galaxy Traders & Agencies Ltd. and others (supra). None of the decisions considered above ..... X X X X Extracts X X X X X X X X Extracts X X X X
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