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TMI Blog2006 (9) TMI 617X X X X Extracts X X X X X X X X Extracts X X X X ..... nd consequently fifteen days period for making the payment of the cheque money can not be counted and unless that is done no offence is made out against the applicants. The contention of respondent complainant that the service is to be presumed also can not be accepted because Section 27 of General Clauses does not takes into it's purview service by private courier. Consequently, the contention of the learned Counsel for the applicant that the service should be presumed in the present case cannot be accepted as it does not hold good on the provision of the statute itself and has to be rejected. Resultantly, the submission of the counsel for the applicant that in the present case no offence is made out holds good and deserves to be accepted and I hold so. Summing up from the discussions made above, since, no offence u/s 138 of N.I. Act is made out against the applicants, in absence of date of service of notice of demand on them their summoning order passed by the Special Judicial Magistrate, in complaint case Rajbir Singh v. Deepak Kumar and Anr., u/s 138 of N.I. Act, cannot be allowed to stand and has to be quashed and I order so. Resultantly, this Criminal Miscellaneo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 15.7.04, which were received to him on 16.7.04. The memo indicated that the cheque had bounced because of funds insufficient . The complainant, thereafter, made several requests to the applicant accused for payment of his loan amount but it was all in vain. Consequently, the complainant gave a legal notice on 26.7.04 under Section 138 of N.I. Act (annexure No. 2) to the applicants accused through his counsel Sri Jai Singh Bhadoria, Advocate. It was sent through courier service DTDC vide annexure No. 3. Inspite of service of notice, since, the applicants did not pay the demanded amount of cheque, the complainant, respondent No. 2 filed a complaint in the court of Special C.J.M. (C.B.I.) Ghaziabad on 30.8.04 being complaint case number 7136 of 2004 under Section 138 of the N.I. Act against the applicants accused. Along with the complaint he filed photocopies of the agreement, original copy of the cheque issued by applicants, copy of notice and four courier receipts. The trial court took cognizance of the offence, recorded the statement of the complainant under Section 200 Cr.P.C. on 13.8.04, (annexure No. 5) and thereafter, vide order-dated 16.9.04, summoned the accused applicants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontentions raised at the bar by the applicants are factual and relates with the merit of the case therefore the prosecution must be allowed to proceed and it can not be nip into the bud at this stage. 7. Cogitating over the rival submissions canvassed at the bar and for a proper appreciation of the same, the ingredients for making out an offence under Section 138 of N.I. Act is to be brought forth. Section 138 of N.I. Act provides: 138. Dishonour of cheque for insufficiency, etc., of 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 provision of this Act, be punished with imprisonment for (a term which may be extended to two y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s issued the cheque (drawer)with a period of thirty days, from the date of receipt of the notice of dishonoured / unpaid cheque from the bank, demanding the payment of the amount of cheque, with or without other prayers for damages or interest thereon (vii) the notice of demand is served on the person who had issued the cheque (drawer) (viii) the drawer does not make the payment to the payee or drawee within fifteen days of the receipt of the said notice on him and the amount of cheque remains unpaid (ix) the complaint is laid in court within one month, after expiry of period of fifteen days from the date of service of notice on the drawer/payer (emphasis supplied). These requirements listed above are sine qua non for making out an offence under Section 138 of the Act. In the event of absence of any of the above mentioned, necessary requirements, the offence under Section 138 of the N.I. Act is not made out. Thus, for making out an offence under 138 N.I. Act, four dates are very relevant to be mentioned in the complaint or at least they should be clear from the papers filed along with the filing of the complaint itself. These dates are (i) date mentioned on the cheque (ii) date of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s done no offence is made out against the applicants. The contention of respondent complainant that the service is to be presumed also can not be accepted because Section 27 of General Clauses does not takes into it's purview service by private courier. For a proper under standing of this submission Section 27 of The General Clauses Act is quoted below: Meaning of Service by post. - where any (Central Act) or Regulation made after the commencement of this 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 by properly addressing, pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. 11. Thus, the wordings of Section 27 of The General Clauses Act clearly indicates that this section deals only with service by 'Post' and that too registered service when such a service is contemplated by the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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