9911796707
TMI Blog2021 (6) TMI 298X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner owed a sum of Rs. 23,46,000/- to him and in this regard had issued to him two cheques bearing Nos. 356152 dated 04-03-2016 amounting to Rs. 13 lacs and cheque No. 356153 dated 04-03-2016 amounting to Rs. 10,46,000/- drawn at J&K Bank Branch Duderhama. 4. It is being stated that the complainant/respondent alleged to have presented the said cheques before the drawee Bank on 04-03-2016 which however, came to be returned back to him on 04-03-2016 itself for the reason "not sufficient funds". 5. It is being stated that the complainant/respondent alleged in the complaint that a demand notice for payment of the cheque amount was issued against the petitioner herein for making payment within 15 days from the date of receipt of the said notice which notice is stated to have been sent through registered post on 16-03-2016 and that the petitioner herein failed to make payments even after receiving said notice. 6. It is being stated that the complainant/respondent herein filed the aforesaid complaint before the trial court on 31-03-2016 through his counsel and on the said date the statement of the complainant/respondent and his witness was recorded by the trial court and that the tria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial court. 12. It is being further stated that on 22-06-2018, the trial court directed the Tehsildar concerned to attach the property of the petitioner which order as well is contended to have been passed in violation of the provisions of Section 88 Cr.P.C. 13. The petitioner contends that all the proceedings conducted by the trial court upon the complaint of the complainant/respondent herein are patently illegal from day one and in violation of the provisions of law, Act and Cr.P.C. The trial court is stated to have abused the process of law by entertaining the aforesaid complaint so much so passing various orders from time to time. No offence is stated to have been made out in the complaint against the petitioner. 14. Heard learned counsel for the petitioner and perused the record. 15. The fundamental moot point which is being raised in the instant petition is that the complaint filed by the complainant/respondent herein before the court below had been filed prematurely under the provisions of the Act, which could not have been entertained by the trial court taken cognizance of or process issued thereupon against the petitioner herein. The case set up by the petitioner is ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138: [Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period]. (c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138. 17. A plain reading of the above provisions suggest that Section 138 is a penal provision that prescribes imprisonment upto two years and fine upto twice the cheque amount. It must, therefore, be interpreted strictly, for it is one of the accepted rules of interpretation that in a penal statute, the Courts would hesitate to ascribe a meaning, broader than what the phrase would ordinarily bear. Section 138 is in two parts. The enacting part of the provision makes it abundantly clear that what constitute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition or else proceeding undertaken thereupon by the trial court. After stating in the complaint that a demand notice was sent to the accused, in law, there is no requirement to state anything further in this regard in the complaint. 19. The demand notice sent through registered post on 16.03.2016 in ordinary course of business would be deemed/presumed to have been served upon the petitioner on the said date itself in view of the fact that there is no denial thereto the same by the petitioner either before the trial court or this court. The 15 days time stipulated under the Act thus, would be deemed to have commenced with effect from 16.03.2016 and ended on 30.03.2016. The complaint indisputably has been filed on 31.03.2016 upon failure of the petitioner to make payment of the said amount to the complainant within 15 days after receipt of the notice and thus, after the expiry of the period of 15 days the complaint is competent and maintainable as also the proceedings initiated thereupon by the trial court. 20. In regard to above a reference here to the Judgment of the Apex Court passed in case titled as "C.C. Alavi Haji vs. Palapetty Muhammed & Anr." reported in (2007) 6 SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post." "17. It is also be borne in mind that the requirement of giving of notice is a clear departure from the rule of criminal law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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