9911796707
TMI Blog2007 (10) TMI 555X X X X Extracts X X X X X X X X Extracts X X X X ..... 007 - - - Dated:- 11-10-2007 - S.B. Sinha Harjit Singh Bedi, JJ. JUDGMENT: S.B. SINHA, J 1. Leave granted. 2. Respondent filed a complaint petition in the 33rd Court of Learned Metropolitan Magistrate at Ballard Pier, Mumbai against the appellant herein alleging, inter alia, that as nine cheques delivered by him having bounced, they have committed an offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as. 3. It was alleged that a notice was served asking the appellants to pay the amount in question within a period of 15 days from the date of receipt thereof. 4. Cheques were admittedly issued on 16.3.2000. The memo in regard to non-payment of the said cheques was received by the respondent on 16.3.2000. Legal notices were allegedly issued on 30.3.2000 by the respondent Advocate intimating the appellants as regards the dishonour of the said cheques and calling upon them to make payment of the amount of cheque, stating; 4. Our clients presented all the aforesaid cheques for payment on 16th March, 2000 through their bankers, Saraswant Co-op Bank Ltd., Woli Branch, Mumbai 400 018. All the aforesaid cheques were dishonoured and retu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accept service of the letter. 4. In view of the above I say that the said notice has been duly served upon Mr. Arvind Naik Accused No. 2 Director of M/s. Sarav Investments Consultancy Pvt. Ltd. and upon the company Accused No. 1. The said service upon them has been duly completed in accordance with law. 7. The complaint petition was filed on 9.4.2000. In regard to the alleged service of notice, it was stated:- . The said notice was sent to Accused Nos. 1 and 2 by Hand Delivery, but to the shock of the representatives of the advocates of the complainant who visited to the premises of the Accused to deliver the said notice to the accused, the premises of the Accused No. 1 were closed and the Accused No. 2 was also not available at that address. I say the accused No. 2 has, deliberately and intentionally, shifted premises of Accused No. 1 to avoid the service of the notice upon him and the accused No. 1 company. The complainant relies upon the affidavit of the representative of the Advocates of the Complainant trust who visited the premises of the Accused No. 1 to serve the statutory notice upon the accused. 8. Relying on or on the basis of the purported statements made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sfy the condition of service of notice within 15 days of the receipt of information of dishonour. This was not at all verified or examined by the Ld. Magistrate. Had it been done the abovementioned glaring defects were there for anyone to see. Suffice is to say relying upon abovementioned observations of the Hon ble Supreme Court that the service of notice within the period is a sine quo non. There is no alternative but to say that whatever material was before the Ld. Magistrate it did not satisfy this condition at all. Even before me now after considering all these aspects the only conclusion can be that the said condition satisfied. This position as discussed above does not depend upon any contentions raised by the accused but they follow from the material that was produced or made available to the trial Court by the complainant themselves. The question here is not of believing or disbelieving the evidence that is produced by the complainant though one may say that the so called evidence of attempt of service is far from being free from doubt. But I am not passing this order on that ground. I have considered only the complainant before the trial court. On examination of only th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount of money to another person from out of that account for the discharge, in whole or in part, 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 be extended 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 ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce (vide p. 621): person notifies or gives notice to another by taking such steps as may be reasonably required to inform the other in the ordinary course, whether or not such other actually comes to know of it. A person receives a notice when it is duly delivered to him or at the place of his business. 20. If a strict interpretation is given that the drawer should have actually received the notice for the period of 15 days to start running no matter that the payee sent the notice on the correct address, a trickster cheque drawer would get the premium to avoid receiving the notice by different strategies and he could escape from the legal consequences of Section 138 of the Act. It must be borne in mind that the court should not adopt an interpretation which helps a dishonest evader and clips an honest payee as that would defeat the very legislative measure. 21. In Maxwell Interpretation of Statutes, the learned author has emphasized that provisions relating to giving of notice often receive liberal interpretation (vide p. 99 of the 12th Ed.). The context envisaged in Section 138 of the act invites a liberal interpretation for the person who has the statutory obligatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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