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TMI Blog2021 (11) TMI 726X X X X Extracts X X X X X X X X Extracts X X X X ..... ough the actual date of service of notice was not known, the Complainant proceeded on the basis that the same was served within the reasonable period. It was held that if the presumption of notice within the reasonable period is raised, the deemed service at best can be taken to be 30 days from the date of its issuance and the accused was required to make payment in terms of the said notice within 15 days thereafter and the complaint petition therefore could have been filed after expiry of 15 days given to the accused for payment of money after receipt of notice. This Court finds that the law has been well settled by the aforesaid judgement that the cause of action for filing a Complaint case under Section 138 of the N.I. Act could not arise prior to expiry of 15 days from the date of service of the legal notice on the accused - this Court also finds that even if the best case of the Complainant is taken into consideration, then the date of dispatch of the legal notice regarding bouncing of the cheque by the complainant is 19.11.2009 (through registered cover), the date of deemed service of legal notice upon the petitioner would be 18.12.2009 (30 days from dispatch of legal not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by him. Arguments by the learned Amicus on behalf of the petitioner 5. While advancing the arguments, learned Amicus Curiae submitted that the present case can be disposed of on a short point that the Complaint petition itself was premature as the statutory period prescribed under the provisions of Section 138 of the Negotiable Instruments Act, 1881 was not duly satisfied. Learned Amicus Curiae also submitted that this is without prejudice to the contention of the petitioner that the cheque itself was not issued against any debt or liability. 6. The learned counsel submitted that the material dates would be the date of issuance of cheque of ₹ 3.5 lakhs on 24.10.2009; the cheque bounced on 10.11.2009 on account of insufficient funds and the legal notice was dispatched through registered cover on 19.11.2009. He submitted that there is no evidence of service of the legal notice to the petitioner and accordingly, the learned court below has considered deemed service of notice, which according to the learned Amicus Curiae could has been taken only upon expiry of 30 days from the date of dispatch of the legal notice. The learned Amicus Curiae submitted that accordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 202 Cr.P.C., a Prima facie case under Section 138 of Negotiable Instruments Act was found to be made out against the petitioner. The substance of accusation was explained to the petitioner on 22.03.2010 for the offence under Section 138 of Negotiable Instruments Act to which the petitioner pleaded not guilty and claimed to be tried. 11. The Complainant examined himself as C.W.-5. He has deposed that on 24.10.2009, the accused had given him a cheque of ₹ 3.5 lakhs. He has further deposed that there was a partnership work between him and the petitioner and for that purpose, he had given him a debt of ₹ 3 lakhs. On final settlement done between them on 24.10.2009, a profit of ₹ 61,000/- was shown in his favour for his 33% share in the partnership work and the said cheque of ₹ 3.5 lakhs bearing cheque no.503032 of Punjab National Bank was given to him after calculating the debts and his profit. The cheque was submitted for encashment in his account of State Bank of India, Bazar Branch on 10.11.2009. The said cheque was dishonoured due to insufficient fund in the account of the petitioner. Thereafter, the said cheque was returned to him on 10.11.2009 with a m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion which is required to be answered in the present case is as to whether on the date of filing of the complaint case under Section 138 of the Negotiable Instruments Act, 1881, the cause of action had crystalized or the complainant itself was pre-mature? 15. The material dates are: - 24.10.2009-date of issuance of cheque of ₹ 3.5 lakhs; 10.11.2009 -the cheque bounced on account of insufficient funds 19.11.2009-the legal notice was dispatched through registered cover. 22.12.2009-Complaint case was filed. 16. This Court finds that admittedly, there is no evidence of service of the legal notice to the petitioner and accordingly, the learned courts below has considered deemed service of notice by referring to the General Clauses Act. 17. This Court is of the considered view that presumption regarding service of notice sent through registered cover can be drawn only upon expiry of 30 days from the date of dispatch of notice as has been held by the Hon ble Supreme Court in the Judgment reported in (2008) 13 SCC 689 (Subodh S. Salaskar vs. Jayprakash M. Sah and Another). In the said judgment, the notice was sent through speed post and although the actual da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the credit of the 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 the bank; (iv) the payee or the holder in due course of the cheque 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 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; (v) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice. 36. A complaint filed before the expiry of 15 days from the date on which notice has been served on drawer/accused cannot be said to disclose the cause of action in terms of clause (c) of the proviso to Section 138 and upon such complaint which does not disclose the cause of action the court is not competent to take cognizance. A conjoint reading of Section 138, which defines as to when and under what circumstances an offence can be said to have been committed, with Section 142(b) of the NI Act, that reiterates the position of the point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment that the complaint under Section 138 of the NI Act filed before the expiry of 15 days of service of notice could not be treated as a complaint in the eye of law and criminal proceedings initiated on such complaint are liable to be quashed. 19. This Court finds that the law has been well settled by the aforesaid judgement that the cause of action for filing a Complaint case under Section 138 of the N.I. Act could not arise prior to expiry of 15 days from the date of service of the legal notice on the accused. 20. This Court also finds that even if the best case of the Complainant is taken into consideration, then the date of dispatch of the legal notice regarding bouncing of the cheque by the complainant is 19.11.2009 (through registered cover), the date of deemed service of legal notice upon the petitioner would be 18.12.2009 (30 days from dispatch of legal notice) and 15 days from the date of service of notice would expire only on or about 02.01.2010 and present complaint case has been filed on 22.12.2009 i.e. on the 4th day from the deemed service of notice, if taken as 18.12.2009. 21. This Court finds that in the light of the judgment passed by the Hon ble Su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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