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TMI Blog2012 (3) TMI 682X X X X Extracts X X X X X X X X Extracts X X X X ..... it was dishonoured on the ground of insufficiency of funds. On receipt of the dishonour memo, statutory notice was sent by registered post on 12-4-2004. The registered postal cover was returned 'unclaimed'. That returned postal cover, Ext. P-5, was delivered to the complainant only on 27-4-2004, The complaint was filed on 3-6-2004. The court below found that the period should be reckoned from 15-4-2004 itself which was the date on which the notice was stated to have been refused or unclaimed by the addressee. Accepting that contention, the learned Magistrate acquitted the accused under Section 255(1) of Cr. P.C. The short, but important question that arises in this case is whether the period prescribed for filing complaint under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by giving notice in writing. The offence would be complete only if the drawer fails to pay the cheque amount within 15 days of the receipt of the said notice. If that be so, the material and relevant date for accrual of cause of action would be the expiry of the period, as aforesaid, from the date of receipt of the notice by the drawer. But at the same time it cannot be forgotten that the complainant being the sender of the notice cannot be asked to go to the post office of the addressee/destination on all days to know the actual date of service or refusal of the notice by the addressee. That date of deemed service, will not invariably be known to the sender of the notice. The knowledge of such refusal or returning of the notice as unclai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat case that the intimation was given to the addressee on 4-7-1998. The notice has to be retained in the post office for six days. If so, it was held that the notice could have been returned by the postman only on 10-7-1998. Therefore, the drawer had time for payment up to 25-7-1998. Since the complaint was filed on 19-8-1998, it was found to be well within time and thus the Learned Counsel for the respondents submits that the facts dealt with by the court in that case are entirely different. It is further submitted by the Learned Counsel that in the factual background of that case the observation made in that judgment that the presumption of deemed service should be drawn reckoning the date on which the notice was delivered with the endor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the notice is not returned, the complainant is certainly expected to make enquiries. If he does not draw the presumption of due service at the appropriate time by being indifferent to his own rights, such a complainant may not be justified in insisting that the presumption of due service can be drawn only if and when he gets the notice sent by him returned to him unserved. But in all other cases where the notice sent is returned to the sender within a reasonable time, such sender will be obliged to invoke the presumption of due service only on the date on which the sender receives back the returned notice. It was further observed: In actual practice I find that the postal authorities do show such indulgence to addressees who make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t can be returned only thereafter. Since on the 7th day the addressee did not approach to receive the postal articles, it must have been returned on 22-4-2004. It was thereafter delivered to the sender on 27-4-2004. Therefore, it cannot be said that there was unreasonable delay in delivering the returned postal cover. Had it been a case where the sender did not get postal acknowledgement or the letter sent by registered post returned to him within a reasonable time, when it should have been delivered to the sender, then it could have been said that there is a duty cast on the sender to address the postal authorities to ascertain whether notice was served and if so the date of service of the notice or whether the notice was returned refused/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f in fact, what was stated by him was true. The evidence given by P.W. 1 was analysed by the court below in the correct perspective and found that the transaction pleaded by him is true and acceptable. Since the amount was admittedly not paid, the conviction must necessarily follow. 12. The Learned Counsel for the respondent/accused submits that at least four months time may be granted to the respondent to pay the amount. This request is resisted by the Learned Counsel for the complainant stating that the case was filed in the year 2004 and so that much time may not be granted. In the result, this criminal appeal is allowed; while reversing the order of acquittal passed by the learned Magistrate, the accused/respondent is found guilty of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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