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TMI Blog2020 (8) TMI 911X X X X Extracts X X X X X X X X Extracts X X X X ..... eipt of letter dated 15.04.1997. And the said statement has not been denied by the complainant. From the copy of the letter that has been relied upon, this court finds that the demand to pay the said amount within seven days is in clear violation of the provision of Section 138(c) of the N.I. Act 1881. The power of the court to condone the delay, on a prayer under Section 142 (1) (b) is in respect of filing of a complaint under Section 138 of the N.I. Act and not in respect of issuance of notice under Section 138 of the N.I. Act. The present case has been filed on 14.05.1997 and thus with in the period of limitation. The complainant has also admitted that the mother of the accused has filed a suit against the complaint s elder brother Nirmal Guchait and the said suit is still pending. This shows that there is on going dispute between the parties. The present case is under Section 138 of the N.I. Act, wherein the mandatory requirement in a case under this provision, is the notice, which initiates the total process and is the base/foundation of such a case. The notice in this case has to be complete in all respect as required under the said Section. Any defect in the said notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t notice dated 15.04. 1997 sent a reply dated 21.04.1997 to the lawyer of the complainant through his Advocate Sri Madan Chandra Saha, denying the material allegations in the notice. As the accused did not make payment covered by the cheques, the complainant filed the instant complaint in the Court of the learned Chief Judicial Magistrate, Hooghly under Section 138 of the N.I. Act. The defence of the accused was that of innocence and being falsely implicated and that he has no debt or liability to the complainant (though not rebutted under Section 139 of the N.I. Act, by the accused). Mr. Mirza Firoz Ahmed Begg, learned Advocate appointed as Amicus Curie to represent the appellant/complainant submits that during trial all relevant documents were duly proved and exhibited and PW 2 (SBI employee) proved the cheques on behalf of the appellant/complainant in Court. It is further submitted that the accused/opposite party no. 2 could not deny the case of the complainant. The Trial Court wrongly dismissed the complaint case on the point of notice without considering the evidence-on-record in the proper perspective. It is also submitted that the notice was in accordance with law and w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is further stated that as four cheques were dishonoured, he issued notice by registered post with Acknowledgement Due requiring the accused to make payment on 15.04.1997. The complainant has filed the postal receipt which shows that notice was sent to the accused through registered post but the A.D. Card has not came back to the sender/complainant after service. Prosecution witness no. 1, Sujoy Guchait, the appellant/complainant has further stated that notice was duly served upon the accused/opposite party no. 2 is proved by the fact that the complainant received a reply dated 21.04.1997 to his notice dated 15.04.1997. As such it can be presumed that the notice was duly served. The complainant in his examination in chief has filed a Xerox copy of the said letter (reply) dated 21.04.1997 which is part of the record. Prosecution witness no. 2, Srikanta Kumar Das is an employee of State Bank of India, Tarakeswar Branch. This witness has corroborated the evidence of PW 1 in respect of the return of the cheque and has proved the return memos. The return memos are dated 08.04.1997 and 07.03.1997. This witness in his cross examination has stated that from the documents it ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turn of the cheque as unpaid; and (c) The drawer of such cheque fails to make the 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. A cheque is commonly used and post-dated cheques are also used in various business transactions. Post-dated cheques are issued to give the cheque drawer some accommodation. It is therefore important to ensure that the cheque drawer does not misuse the accommodation given to it. The Negotiable Instruments Act, 1881 ( Act ) deals with negotiable instruments, such as promissory notes, bills of exchange, cheques, etc. Sections 138 to 142 of Chapter XVII were implemented to inculcate trust in the effectiveness of banking operations and give legitimacy to the negotiable instruments used in business transactions. If a party issues a cheque as a mode of deferred payment and the payee accepts the cheque in the same way that he or she receives his payment on the due date, then he or she should not suffer on account of non-payment. The penal provisions in Sections 138 to 142 of the Act ensure that obligations in the form of late payme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The payee or the holder in due course of the cheque, as the case may be, makes a demand for the 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. As such it is found that the notice herein has not been issued to the drawer of these two cheques within the mandatory period of fifteen days of the receipt of information on 07.03.1997 by the complainant from the bank regarding the return of the cheque as unpaid and as such the notice is defective in respect of the said two cheques as it is not in accordance with the provision of Section 138(b) of the N.I. Act. The next point is that the complainant in his evidence has relied upon the photo copy of the reply given by the Advocate of the accused in response to his letter dated 15.04.1997 which proved the service of the said notice. It is this document which has been filed and relied upon by the complainant in support of his due service of notice. It is seen from the said copy of the letter that the alleged notice dated 15.04.1997 gave a notice to pay the cheque amou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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