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TMI Blog2022 (7) TMI 514X X X X Extracts X X X X X X X X Extracts X X X X ..... o furnish fresh particulars of the petitioner/accused. The address of the petitioner is shown as Vasundra Enclave, Jammu which is patently incorrect. The second address of the petitioner shown in the notice of demand and the complaint as Anand Prabat, New Delhi is incomplete, inasmuch as it lacks necessary details that would enable a postman to locate the addresses. Once the material on record clearly suggests that the statutory notice of demand was sent by the respondent/complainant on a wrong address, the presumption of receipt of notice by the petitioner/accused does not arise - Thus, the pre-condition of filing a complaint under Section 138 of the NI Act of sending a statutory notice has not been satisfied in the present case. Therefore, no cause of action arose in favour of the respondent/complainant to file the subject complaint. He, therefore, could not have instituted the complaint nor the trial court could have taken cognizance of the offence and issued process against the petitioner. Thus, it is clear that the material on record does not disclose commission of offence under Section 138 of the NI Act against the petitioner/accused, as such, the impugned complaint an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice of demand upon him, it cannot be stated that the offence under Section 138 of the NI Act is made out against him. It is urged that the learned trial Magistrate has not taken note of this aspect of the matter and passed the impugned order dated 15.04.2015 which is liable to be set aside. 4) I have heard learned counsel for the parties and perused the material on record. 5) In the notice of demand dated 17.02.20215 address of the petitioner has been shown as under: I) Engineering Control, through its Proprietor, Shah Ji Koul, S/O Surrender Nath Koul, RIO 58 Priyag Apartment, Vasundra Enclave-96 Jammu, J K II) Anand Prabat New Delhi 6) A perusal of the impugned complaint also shows that address of the petitioner/accused has been shown as resident of 58-Priyag Apartment, Vasundra Enclave-96, Jammu. When the process was issued by the learned trial Magistrate against the petitioner/accused, the same could not be served upon him because of the wrong address. The trial court record shows that the respondent/complainant moved an application before the said Court furnishing fresh particulars of the petitioner/accused. It seems that the same was done by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions must be satisfied before dishonour of a cheque can constitute an offence and become punishable. The first condition is that the cheque ought to have been presented before the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. The second condition is that the payee or the holder in due course of the cheque must make a demand for payment of the 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 return of the cheque as unpaid. The third condition is that the drawer of such a cheque should have failed to make payment of the said amount of money to 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. It is only upon the satisfaction of all the aforesaid three conditions that an offence under Section 138 can be said to have been committed by the person issuing the cheque. Thus, giving of notice of demand to the payee within the stipulated period after dishonor of a cheque is one of the necessary conditions for making out the off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be proved. What would constitute an offence is stated in the main provision. The proviso appended thereto, however, imposes certain further conditions which are required to be fulfilled before cognizance of the offence can be taken. If the ingredients for constitution of the offence laid down in provisos (a), (b) and (c) appended to Section 138 of the Negotiable Instruments Act are intended to be applied in favour of the accused, there cannot be any doubt that receipt of a notice would ultimately give rise to the cause of action for filing a complaint. As it is only on receipt of the notice that the accused at his own peril may refuse to pay the amount. Clauses (b) and (c) of the proviso to Section 138 therefore must be read together. Issuance of notice would not by itself give rise to a cause of action but communication of the notice would. 14) It was further observed by the Court that for constitution of an offence under Section 138 of the Act, the notice must be received by the accused. The Court went on to observe that it may be deemed to have been received in certain situations. An inference of having received the notice by a drawer of a cheque can be raised only if the ..... 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