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TMI Blog2022 (9) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... a Eleven Pvt. Ltd. In view of the repayment of the above said loan the petitioner on behalf of M/s Media Eleven Pvt. Ltd. issued a cheque being No.197977 dated 09.02.2016 of Rs.4,00,000/- of Axis Bank, Ranchi Branch, Ranchi. It is further alleged that on deposition of the cheque by the respondent bank the same was bounced and returned unpaid by the Axis Bank, Ranchi Branch, Ranchi with remarks 'payment stopped by drawer'. Thereafter even after serving legal notice dated 01.03.2016 by the respondent and requesting for the payment of the dishonored cheque the same did not take place. The learned senior counsel appearing for the petitioner submits that the cheque issued by the petitioner was dishonoured and returned back by the banker unpaid with return memo dated 11.02.2016 for the reason that 'payment stopped by the drawer' and the complainant thereafter sent a demand notice through his lawyer by registered post on 01.03.2016 under section 138 N.I. Act, however, when the cheque amount remained unpaid then this complaint was filed by the complainant on 21.03.2016. He further submits that the cognizance is also not in accordance with law and the judicial mind has not been applied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of this nature, there was no occasion for the Court to hold that service of notice could not be effected within a period of thirty days. 25. The complaint petition admittedly was filed on 20-4- 2001. The notice having been sent on 17-1-2001, if the presumption of service of notice within a reasonable time is raised, it should be deemed to have been served at best within a period of thirty days from the date of issuance thereof i.e. 16-2-2001. The accused was required to make payment in terms of the said notice within fifteen days thereafter i.e. on or about 2-3-2001. The complaint petition, therefore, should have been filed by 2-4-2001." Per contra, Mr. A. Allam, the learned Senior counsel appearing for the Bank of India -O.P.No.2 submits that these are the submission which are subject matter of trial and once the notice is issued presumption is there that the notice has been received and that is the subject matter of trial. He relied in the case of "Ajeet Seeds Ltd. v. K. Gopala Krishnaiah", AIR 2014 SC 3057. Paragraph nos.10 and 11 of the said judgment is quoted hereinbelow: "10. It is thus clear that Section 114 of the Evidence Act enables the Court to presume that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as held by the Hon'ble Supreme Court in that case. On the deemed service of notice he referred to the case of 'N.Parameshwaran Unni v. G.Knnan and Anr", AIR 2017 SC 1681. Paragraph no.15 of the said judgment is quoted hereinafter: "15. This Court in a catena of cases has held that when a notice is sent by registered post and is returned with postal endorsement "refused" or "not available in the house" or "house locked" or "shop closed" or "addressee not in station", due service has to be presumed. Though in the process of interpretation right of an honest lender cannot be defeated as has happened in this case. From the perusal of relevant sections it is clear that generally there is no bar under the NI Act to send a reminder notice to the drawer of the cheque and usually such notice cannot be construed as an admission of non-service of the first notice by the appellant as has happened in this case." Relying on this judgment, Mr. A. Allam, the learned Senior counsel for the O.P.no.2 submits that how notice is required to be served and presumed to be served has been discussed therein. By way of relying in the case of "C.C. Alavi Haji case [C.C. Alavi Haji v. Palapetty Muhammed", ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement 'refused' or 'not available in the house' or 'house locked' or 'shop closed' or 'addressee not in station', due service has to be presumed. (Vide Jagdish Singh v. Natthu Singh [(1992) 1 SCC 647], State of M.P. v. Hiralal [(1996) 7 SCC 523] and V. Raja Kumari v. P. Subbarama Naidu [(2004) 8 SCC 774 : 2005 SCC (Cri) 393] .) It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved." On these grounds, he submits that there is no illegality in the filing of the case and the case has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in writing to a Magistrate with a view to taking his action against a person who has committed an offence. Commission of an offence is a sine qua non for filing a complaint and for taking cognizance of such offence. A bare reading of the provision contained in clause (c) of the proviso makes it clear that no complaint can be filed for an offence under Section 138 of the NI Act unless the period of 15 days has elapsed. Any complaint filed before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint at all in the eye of the law. It is not the question of prematurity of the complaint where it is filed before the expiry of 15 days from the date on which notice has been served on him, it is no complaint at all under law. As a matter of fact, Section 142 of the NI Act, inter alia, creates a legal bar on the court from taking cognizance of an offence under Section 138 except upon a written complaint. Since a complaint filed under Section 138 of the NI Act before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint in the eye of the law, obviously, no cognizance of an offence ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication of judicial mind. The argument of Mr. Allam, the learned Senior counsel appearing for the O.P.No.2 Bank of India with regard to presumption of notice is not in dispute. In the case of "Ajeet Seeds Ltd. v. K. Gopala Krishnaiah",(supra) relied by the learned senior counsel for the Bank, the dispute was with regard to service of notice. That is being not the subject matter of the present case as that has not been denied and that judgment is on the other facts and is not helping the O.P.No.2. The judgment relied by the learned counsel for the Bank in the case of "'N.Parameshwaran Unni v. G.Knnan and Anr"" (supra), is on the point of service of notice wherein the notice is refused as not available in the house and whether it will be presumed to be served or not that is not helping the O.P.No.2. The judgment relied by Mr. Allam, the learned senior counsel in the case of "Alavia "(supra) was on the point of no averment in the complaint that the notice was served to at the correct address by the registered post and in that view of the matter the Hon'ble Supreme Court has considered section 100 of the Evidence Act and held that the Court may draw presumption that what has happened ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin the prescribed period of one month, a complaint may be taken by the court after the prescribed period. Now, since our answer to Question (i) is in the negative, we observe that the payee or the holder in due course of the cheque may file a fresh complaint within one month from the date of decision in the criminal case and, in that event, delay in filing the complaint will be treated as having been condoned under the proviso to clause (b) of Section 142 of the NI Act. This direction shall be deemed to be applicable to all such pending cases where the complaint does not proceed further in view of our answer to Question (i). As we have already held that a complaint filed before the expiry of 15 days from the date of receipt of notice issued under clause (c) of the proviso to Section 138 is not maintainable, the complainant cannot be permitted to present the very same complaint at any later stage. His remedy is only to file a fresh complaint; and if the same could not be filed within the time prescribed under Section 142(b), his recourse is to seek the benefit of the proviso, satisfying the court of sufficient cause. Question (ii) is answered accordingly. In light of the directi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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