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TMI Blog2021 (6) TMI 298X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Petition dismissed. - CRM (M) No. 163/2019, Crl. M. Nos. 108/2010 and 514/2019 - - - Dated:- 27-5-2021 - Javed Iqbal Wani, J. For the Appellant : I. Sofi, Advocate JUDGMENT Javed Iqbal Wani, J. 1. Inherent jurisdiction of this court under Section 561-A Cr.P.C. (now Section 482 Cr.P.C.) is being invoked by the petitioner seeking quashment of complaint File No. 04/C titled as Farooq Ahmad Parray vs. Ghulam Ahmad Rather as also order dated 31-03-2016 and all subsequent proceedings/orders. 2. The petition is filed on the premise by the petitioner that the complainant/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ys from the date of dispatch of notice as the offence under Section 138 of the Act is made out only if the accused fails to make the payment within 15 days from the date of the receipt of the demand notice. 9. It is being stated that there has been no material on record to show that the demand notice was served upon the petitioner and that the complainant/respondent without waiting for expiry of 15 days stipulated in the demand notice filed the complaint and thus, there was no commission of offence committed by the petitioner and consequently the trial court ought not to have entertained the complaint, taken cognizance or issue notice to the petitioner. The presentation of complaint, the order of cognizance and issuance of notice to the petitioner vide order dated 31-03-2016 is contended to be illegal and in violation of the provisions of the Act. 10. It is being further stated that the complaint case was listed before the court below on 10-08-2017 and was adjourned on the ground that the parties want to have private settlement whereafter it had been fixed for 19-08-2017 on which date the parties sought extension of time for compromise and that the case was fixed for 09-09-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 extend 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 cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ises the second part of the provision, any dishonour falling within the four corners of the enacting provision would be punishable without much ado. The proviso, however, draws an exception to the generality of the enacting part of the provision, by stipulating two steps that ought to be taken by the complainant holder of the cheque before the failure of the drawer gives to the former the cause of action to file a complaint and the competent Court to take cognizance of the offence. These steps are distinct from the ingredients of the offence which the enacting provision creates and makes punishable. It follows that an offence within the contemplation of Section 138 is complete with the dishonour of the cheque but taking cognizance of the same by any Court is forbidden so long as the complainant does not have the cause of action to file a complaint in terms of clause (c) of the proviso read with Section 142. 18. While adverting to the issues raised in the petition, a perusal of the record reveals that the demand notice has been sent through registered post indisputably by the complainant/respondent herein to the petitioner on 16-03-2016. The petitioner herein however, does not an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of the particular case. The court may presume--- that the common course of business has been followed in particular cases; 13. According to Section 114 of the Act, read with Illustrations (f) thereunder, when it appears to the court that the common course of business renders it probable that a thing would happen, the court may draw presumption that the thing would have happened, unless there are circumstances in a particular case to show that the common course of business was not followed. Thus, Section 114 enables the court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. Consequently, the court can presume that the common course of business has been followed in particular cases. When applied to communications sent by post, Section 114 enables the court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. But the presumption that is raised under Section 27 of the GC Act is a far stronger presumption. Fur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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