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TMI Blog2017 (3) TMI 1340X X X X Extracts X X X X X X X X Extracts X X X X ..... non-service of the first notice by the appellant as has happened in this case. First notice sent by appellant on 12-04-1991 was effective and notice was deemed to have been served on the first respondent. Further, it is clear that the second notice has no relevance at all in this case at hand. Second notice could be construed as a reminder of respondent’s obligation to discharge his liability. As the complaint, was filed within the stipulated time contemplated under Clause (b) of Section 142 of the N.I. Act, therefore Section 138 r/w 142 of N.I. Act is attracted. In the view of the matter, we set aside the impugned judgment of the High Court. However, during the course of hearing, learned counsel for first respondent, as agreed by app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he High Court of Kerala at Ernakulam in Criminal Revision Petition No. 644 of 1995 whereby the High Court allowed the criminal revision of the first respondent by setting aside the concurrent judgments of Trial Court and Appellate Court, that first respondent cannot be convicted under Section 138 of the Negotiable Instruments Act, 1881 (in short N.I. Act ) as the procedure prescribed under this section was not satisfied in the instant case. 2. Brief facts leading to this criminal appeal, as per the prosecution case, are that the first respondent/accused borrowed ₹ 64,000/- on 13-10-1990 from the appellant/complainant. In lieu of the borrowed amount, first respondent issued two cheques dated 13-10-1990 for ₹ 10,000/- and S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I. Act, which was numbered as Summary Trial No. 34/92. After a full fledged trial and upon appreciating the documentary evidence adduced on behalf of the parties, the Trial Court allowed the complaint as the appellant was successful in proving, the case beyond reasonable doubt that first respondent committed an offence punishable under Section 138 of the N.I. Act. Accordingly, the Trial Court by judgment dated 29-07-1993 convicted and sentenced the first respondent to undergo simple imprisonment of three months. 6. Aggrieved by the conviction and sentence, first respondent preferred Criminal Appeal No 104 of 1993 before Addl. Sessions Judge at Alappuzha. The Ld. Judge, after perusing the records and on elaborate hearing, by its judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the N.I. Act. 10. Before delving into the issue, it would be appropriate to reproduce Section 138 of the Act, as it then stood. 138. Dishonour of cheque for insufficiency, etc., of funds in the account: Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eque within fifteen days from the date of intimation received from the bank about dishonour. 12. It is explicitly made clear under Clause (c) of Section 138 of N.I. Act, that this gives an opportunity to a drawer of the cheque to make payment within fifteen days of receipt of such notice sent by the drawee. It is manifest that the object of providing Clause (c) is to avoid unnecessary hardship. Even if the drawer has failed to make payment within fifteen days of receipt of such notice as provided under Clause (c), the drawer shall be deemed to have committed an offence under the Act and thereafter the drawee would be competent to file complaint against the drawer by following the procedure prescribed under Section 142 of the Act. 13. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tthu Singh, (1992) 1 SCC 647 ; State of M . P . v . Hiralal, (1996) 7 SCC 523 and V . Raja Kumari v . P . Subbarama Naidu, (2004) 8 SCC 774 . ) Though in process of interpretation right of an honest lender cannot be defeated as has happened in this case. From the perusal of relevant sections it is clear that generally there is no bar under the N.I. Act to send a reminder notice to the drawer of the cheque and usually such notice cannot be construed as an admission of non-service of the first notice by the appellant as has happened in this case. 16. Moreover the first notice sent by appellant on 12-04-1991 was effective and notice was deemed to have been served on the first respondent. Further, it is clear that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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