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TMI Blog2019 (10) TMI 806X X X X Extracts X X X X X X X X Extracts X X X X ..... cheque had got dishonored for reason Kindly contact drawer/drawee bank and pleasen. and not for the fund insufficient. Now the onus to prove this was upon the applicant and he can summon the bank record to show that at the relevant time period when the cheque in question was presented, he had sufficient balance in his account and therefore, the reason for dishonour of cheque in question is to be adjudicated after recording the evidence of the parties - It is also pertinent to note that in the instant case, the complainant has already discharged his burden by producing the impugned cheques, which he alleges to have been issued by the applicant/accused in his favour bearing a signature, hence, initial presumption of the said cheque having been issued in favour of the complainant is already there which needs to be rebutted by the accused. The Court finds that the impugned order which is being challenged by the learned counsel for the applicant does not suffer from any lacuna at this stage and, therefore, this Court does not find any force in the arguments of the learned counsel for the applicant - petition dismissed. - S. K. Awasthi Judge For the Applicant : Shri R.S. Raghuvanshi, l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llenge before this Court in the instant application. 4. Learned counsel for the applicant has submitted that the complaint presented by the applicant is not maintainable as prior mandatory statutory 15 days' notice has not been served on the applicant by the respondent. From the averments of the complainant itself, it is apparent that the notice sent by the respondent/complainant through registered post before instituting the complaint was returned unserved to the respondent and thereafter he did not make any further attempt to serve the notice to the applicant and filed the complaint. The acknowledgment card of the registered post of said notice, clearly shows that there are no signatures or acknowledgment of the applicant or anyone else on the same. Further, the postal remarks on the envelope of such registered post also have remarks Praptkarta Aseemit Samay Ke Liye Bahar Gaye Hain, Atah Wapas , which does not show that it is served on the applicant. Despite this, the court below entertained the complaint and had taken cognizance against the applicant clearly ignoring this aspect of law and fact. It is also submitted that the said cheques were returned by the bank with the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheque and the said notice was returned back to the respondent/complainant with remark that Praptkarta Aseemit Samay Ke Liye Bahar Gaye Hain, Atah Wapas . 8. Now it is important point to be decided in this case is that whether the cause of action has arisen as the notice sent by the respondent/accused to the accused/applicant was returned due to his unavailability. The conditions pertaining to the notice to be given to the drawer have been formulated and incorporated in clause (b) and (c) of the proviso of Section 138 (1) of the Act, the said clauses is reproduced below;- (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, 20 [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 amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. On the part of the payee he has to make a demand by giving a notice in writing a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eneral Clauses Act is rebuttable. But such rebuttal does not assume finality merely because of the sendee's denial to receive the notice. It would be so only where the sendee proves that he had not in fact received the notice and that he was not responsible for such non-service. 13. In Madhu v. Omega Pipes Ltd. [1994 (1) ALT (Crl.) 603 (Kerala)] the scope and ambit of Section 138 clauses (b) and (c) of the Act were noted by the Kerala High Court and observed as follows: In Clause (c) of the proviso the drawer of the cheque is given fifteen days from the date 'of receipt of said notice' for making payment. This affords clear indication that 'giving notice' in the context is not the same as receipt of notice. Giving is the process of which receipt is the accomplishment. The payee has to perform the former process by sending the notice to the drawer in his correct address, if receipt or even tender of notice is indispensable for giving the notice in the context envisaged in Clause (b) an evader would successfully keep the postal article at bay at least till the period of fifteen days expires. Law shall not help the wrong doer to take advantage of his tactics. Hence ..... X X X X Extracts X X X X X X X X Extracts X X X X
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