9911796707
TMI Blog2006 (11) TMI 709X X X X Extracts X X X X X X X X Extracts X X X X ..... y means of two bank drafts of ₹ 1,00,000/- and ₹ 2,00,000/- dated 4.5.1996 and 3.6.1996 respectively. The accused executed a promissory note dated 5.6.1996 and also handed over three post-dated cheques of ₹ 1,00,000/- each all dated 4.9.1996. When these cheques were presented for payment on due date, they were returned unpaid with memo dated 7.10.1996 with the remarks not arranged for. The accused was immediately informed, who requested the complainant to present the cheques again. However, when the cheques were presented the second time on 14.10.1996, they were returned dishonoured with the same remarks. Once again, on the representation of the accused, cheques were presented on 4.11.1996 but were returned unpaid vide returning memo dated 6.11.1996 with same remarks. The legal notice dated 13.11.1996 demanding the accused to make the payment was accordingly sent by registered AD post at his official as well as residential addresses. The registered AD letter sent at the residential address of the accused was returned undelivered on 30.11.1996 with the endorsement On repeatedly going to him the receiver (addressee) does not meet. Hence being returned. The regis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 4 of the Limitation Act inasmuch as if the limitation expires on a day which happens to be Court holiday, the application could be filed on the opening day of the Court and, Therefore, complaint filed on 16.1.1997 was perfectly valid. Challenging this order of the learned ASJ present petition is filed by Sh. Ashwani Kumar Julka, accused in the said complaint. 4. It is not disputed that 15.1.1997 was a holiday. However, the finding of the learned MM to the effect that complaint could be filed by 15.1.1997 itself is challenged on the ground that limitation period could not have been counted from 30.11.1996, when the postal envelope containing the notice dated 13.11.1996 had been returned. It is submitted, in the first instance, that it was not open for the Court below to hold that service of notice dated 13.11.1996 had been effected and in fact, there was no service on the petitioner in the eyes of law and, Therefore, the complaint was not maintainable. In the alternative, it is contended that as per the endorsement on the envelope containing notice dated 13.11.1996, the postman had visited last on 21.11.1996 and that would be the date from which the refusal should be infe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Explanation.-For the purpose of this section, 'debt or other liability' means a legally enforceable debt or other liability. 7. As per clause (b) of proviso, notice of demand for payment of the amount in writing is to be sent to the drawer within 15 days of receipt of information by him from the bank regarding the return of the cheque as unpaid. Thus, this period of 15 days starts from the date when the drawee of the cheque receives information from the bank. After this notice is sent, a period of 15 days is to be allowed to the drawer of the cheque for making the payment and clause (c) of proviso states that cause of action would arise in favor of the drawee if the drawer of the cheque fails to make payment within 15 days of the receipt of the said notice. Thus, here 15 days' period is to start from the date of receipt of the notice and it is not from the date when the drawee receives the information about the receipt of the notice by the drawer. 8. While holding that period of 15 days is to start when payee acquires knowledge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... personal knowledge about the date of receipt of the same, unless the notice is sent by messenger and the receipt thereof is duly acknowledged by the person to whom it is sent. But in cases as in the instant case, where notice is sent by registered post A/D, which is the usual mode of service, which could, in particular, hardly be avoided if the parties do not belong to the same place or near about place, the knowledge of the sender (complaint) about the date of receipt of such notice would invariably be dependent upon other agencies, namely, the Postal Department, which is obliged to return back the A/D card to the sender of the registered notice. But the promptitude and efficiency of the Postal Department is a matter which is an everybody experience for the people at large. More often that not, A/D card is hardly returned back to the sender (of registered notice in time. Not infrequently, A/D card never reaches back the sender, necessitating correspondence with the Postal Department as to the delivery/service of the registered notice or the date of delivery/service of such notice. Not unoften, the somnolence of the postal Authority could hardly be shaken within reasonable time in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicit as Constituting the basic assumption underlying the statutory provision. It, Therefore, seems to me that having regard to this well recognized rule of interpretation, a fair and reasonable construction of clause (c) of Section 138 of the Act, should be read into it so that the expression therein within 15 days of the receipt of the said notice should be made to mean within 15 days from the date of knowledge of the sender about the receipt of the notice so that such-like complaint may not fail for default on the part of the Postal Department-without any fault on the part of the complainant. On such construction, cause of action for such complainant, so far as the complainant is concerned, would accrue on the failure of the drawer to make payment within fifteen days from the date of knowledge of the complainant about the receipt of the Notice by the former (drawer), which would neither be prejudicial to him (drawer/accused), rather beneficial to him as he would get longer time to make payment of the amount and thus avoid criminal liability for non-payment. It would, indeed be in the interest of such-like complainant to file complaint for such offences within the prescribed p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion would arise if the offence is committed. 10. The Calcutta High Court thereafter observed as under: 9. Once the cause of action has started running, it cannot remain suspended subsequently. Under Clause 'C' to the proviso to Section 138 the cause of action will start running from the date of receipt of the notice but not from the date of receipt of the 'acknowledgment due card.' It is true that in the above case the notice, was sent in two ways, one by fax message and the other by registered post with A/D. In that case the date of notice was taken from the date of receipt of the fax message and the limitation act accordingly, allowed to run from the date of receipt of the fax message. The Karnataka High Court was under erroneous view that the limitation shall run from the date of receipt of the 'acknowledgment due card' by the complainant. The receipt of the 'acknowledgment due card' by the complainant is not material for the purpose of computation of limitation. Only the receipt of notice by the drawer is an important factor from which day the cause of action shall accrue and within 30 days there from the complaint has to be filed fail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but the aforesaid presumption. 13. It is clear from the above that 15 days' period is to be reckoned from the date when a notice is returned by the sender as unclaimed. A conjoint reading of the two judgments of the Supreme Court in SIL Import USA (supra) and K. Bhaskaran (supra) would clearly establish that 15 days' period is to be counted from the date when the notice is received by the drawer of the cheque and not when intimation of receipt of this notice is received by the sender of the notice. In case the notice is actually received by the addressee (drawer of the cheque) 15 days' period would be reckoned from that date. In those cases, where it is a case of deemed service, namely, where the notice is dispatched at correct address but returned by the addressee and not accepted, it would be from the date when the addressee returned the notice as unclaimed. Applying these principles, it is clear that as per the endorsement on the envelope, registered envelope was lastly taken by the postman at the residential address of the accused on 29.11.1996 and at his official address on 28.11.1996 and thereafter made his endorsement to the effect that on repeatedly going to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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