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TMI Blog2022 (2) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... drawer of the cheque, within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. The Legislatures in their own wisdom employed the language in Clause (b) that the notice had to be served to the drawer of the cheque. Now, if I read Clause (b) of Section 138 of the NI Act with the expression used in Section 27 of the General Clauses Act, then, it comes to fore that where any Central Act made after the commencement of the General Clauses Act authorizes or requires any document to be served by post, whether the expression serve or either of the expressions give or send or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was that the respondent borrowed an amount of ₹ 2,50,000/- from the complainant on 26.04.2010 with a condition to refund the same within a period of three months. But, the respondent did not refund the said money to the complainant within time. The respondent ultimately issued a cheque on 26.07.2011 in the name of the complainant. When the said cheque was deposited for encashment of the bank account on 23.12.2011, it was dishonoured with the remark that the account was closed. Thereafter, the complainant served notice dated 03.01.2012 upon the respondent for payment of the said amount, but, it did not yield any result. 3. Having heard the learned counsels appearing for the parties, learned Chief Judicial Magistrate, North Tripura, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 138 of NI Act was not properly served upon the respondent. 8. Assailing the aforesaid findings recorded by learned CJM, Mr. Chakraborty, learned Sr. counsel, at the very outset, has taken up the point whether the notice was properly served upon the respondent or not. According to learned Sr. counsel, in the instant case, since notice was served upon the wife of respondent, that would be deemed to be effected upon the respondent himself who was the drawer of the cheque. In support of his submission, Mr. Chakraborty, learned Sr. counsel has invited my attention to Section 27 of the General Clauses Act, which reads as under:- 27. Meaning of service by post-- Where any [Central Act] or Regulation made after the commencement o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... funds in the account. --Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other 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 be extended to two years], or with fine which may extend to twice the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore that where any Central Act made after the commencement of the General Clauses Act authorizes or requires any document to be served by post, whether the expression serve or either of the expressions give or send or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected to the addressee unless the contrary is proved. Here the language employed by the Legislature that unless a different intention appears appears to be very significant. As I said earlier, the language used in Clause (b) of Section 138 of the NI Act that the notice is to be served to the drawer of the cheque clearly depicts a different legislative intention that the notice has to be served upon none but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. Clause (b) of the proviso to Section 138 cast on the payee or the holder in due course of the cheque, as the case may be, a duty to make a demand for 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. 7. In the present case, the notice of demand was served upon the wife of the appellant and not the appellant. Therefore, there is no escape from the conclusion that complainant-respondent had not complied with the requirement of giving notice in terms of Clause (b) of proviso to Section 138 of the Act. Unfortunately, the High Court overlooked this important lacuna in the com ..... X X X X Extracts X X X X X X X X Extracts X X X X
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