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TMI Blog2024 (8) TMI 588X X X X Extracts X X X X X X X X Extracts X X X X ..... bserved that proviso appended to section 138 of N.I Act limits the applicability of the main provisions. Unless the conditions precedent for taking cognizance the offence under section 138 of NI Act is satisfied, the court will have no jurisdiction to take cognizance. The complaint petition in view of section 142 (b) of the NI Act was required to be filed within one month from the date on which the cause of action arose in terms of the clause (c) of the proviso to section 138 of the NI Act. The legal notice admittedly was issued on 17.01.2001. It was sent by the speed post. It was supposed to be served within a couple of days. Although the actual date of service of notice was allegedly not known, the complaint proceeded on the basis that the same was served within a reasonable period. The complaint petition admittedly was filed on 20.04.2001. The notice having been sent on 17.01.2001, if the presumption of the service of notice within a reasonable time is raised, it should be deemed to have been served at best within the period of 30 days from the date of issuance of thereof. In the situation, the complaint was hopelessly time barred. It is crystal clear that in the instant case, l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 2, who was dealing with the business of plastic materials to supply quality goods and thereby advanced Rs.90,000/- in the month of September, 2007 but the opposite party No. 2 did not supply the materials as agreed between the parties and upon persistent demand of the advance money, the opposite party No. 2 issued two cheques bearing No. 310525 dated 07.12.2007 of Rs. 45,000/- and another cheque bearing No. 310524 dated 18.10.2007 of Rs. 45,000/- respectively. It is further alleged that the complainant presented the said cheque bearing No. 310525 which was returned with remark of insufficient fund by the banker under memo of notice dated 18.10.2007 and 07.12.2007 respectively. It is further alleged that the Branch Manager of ICICI Bank, Dhanbad instead of sending original cheque No. 310524 and cheque return memo dated 18.10.2007, by mistake sent to the opposite party No. 2, which was received by him. Subsequently, the Branch Manager issued duplicate cheque return memo dated 27.10.2007 in favour of the complainant. Hence, the complainant send legal notice through registered post with A/D demanding the cheque amount from opposite party No. 2 dated 19.12.2007 but he did not reply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he acknowledgment card has not been proved to show the date of receipt of notice and postman has also not been examined. (iv) In the above mentioned circumstances, the presumption of service of notice within the period of 30 days may be raised in terms of section 27 of the General Clauses Act, 1897 and after expiry of 30 days, the appellant is required to make payment within 15 days. Thereafter, the cause of action will arise. (v) Therefore, the complaint being instituted within one month from the date of sending legal notice without proof of its receipt and providing 15 days time to drawer is immature and against the statutory provision constituting no offence under section 138 of N.I. Act. 7. The learned appellate court after apprising with the relevant provision of Sections 138 and 142 of Negotiable Instrument Act, in the light of aforesaid points of arguments raised on behalf of the appellant particularly in view of the Ext. 6 6/1 arrived at conclusion at para 15 of the judgment, which is extracted herein under:- 15. After going through Ext.6 and 6/1 it is clear that legal notice was sent to the appellant on 19.12.07. As per clause(c) of section 138 of N.I. Act if the drawer of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The complainant was not required by law to wait and watch for 30 days and thereafter to institute the complaint case after lapse of 15 more days. The complainant has fulfilled the basic requirement as prescribed under proviso of Section 138 of N.I. Act and Section 142 of the said Act. The interpretation adopted by the learned appellate court encourages the dishonest drawer of the cheque to escape his liability merely on the technicalities. 10. Learned counsel has placed reliance upon the judgment in the case of CC Allavi Haji Vs. Pellapetti Mohd. Anr. reported in (2007) 6 SCC 555 and Ajit Seeds Ltd. Vs. K. Gopala Krishaniya reported in (2014) 12 SCC 685. 11. On the other hand, learned counsel for the opposite party No. 2 defending the impugned judgment passed by learned appellate court has submitted that the learned appellate court has very wisely and aptly considered all aspects of the case in the light of documentary evidence adduced by the complainant and since the case was instituted without providing 15 days time from deemed date of service of notice, it is not maintainable in the eye of law constituting no offence under section 138 of N.I. Act. Therefore, the impugned judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) 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; 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. Section 142 Cognizance of offences. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), (a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138: [Provided that the cognizance of a complaint may be taken by the Court after the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e at the stage of issuance of process to move the High Court for quashing the proceeding under section 482 of Cr.PC. These observations are squarely attracted to the present case. The High Courts reliance on an order passed by a Two Judge Bench in Shakti Travel Tours (2002) 9 SCC 415 is misplaced. The Three Judges Bench of Supreme Court in C.C. Alavi Haji s case has conclusively decided the issues concerned. Thus the judgment in Shakti Travel Tours case does not hold the filed any more. In view of the above impugned judgment of the High Court was set aside and the instant complaint was restored. 17. In the case of C.C. Alavi Haji vs. Palapetty Muhammed and Anr. (2007) 6 SCC 555 , it was observed that when the notice was sent by the registered post by correctly addressing drawer of the cheque, mandatory requirement of issue of notice in terms of section 138 proviso (b) of N.I. Act stands complied with . It is needless to emphasis that the complaint must contain basic facts regarding the mode and manner of issuance of notice to the drawer of the cheque. It is well settled that at the time of taking cognizance of the complaint under section 138 of N.I. Act, the court is required to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minal law, where there is no stipulation of giving a notice before filing a complaint. The entire purpose of requiring a notice to give an opportunity to the drawer to pay the cheque amount within 15 days of service of notice and thereby free himself from the penal consequences of section 138. While construing the said provision, the object of legislation has to be borne in mind. The chapter XVIII of the N.I. Act originally containing sections 138 to 142 was inserted in the Act to create an atmosphere of faith and reliance on banking system by discouraging people from not honouring their commitments by way of payment through cheques. Section 138 of the Act was enacted to punish those unscrupulous persons who purported to discharge their liability by issuing cheque without really intending to do so. To make this provision contained in the said chapter more effective, some more sections were inserted in the chapter and some amendments in the existing provisions were made. These amendments do indicated the anxiety of the legislature to make the provision more result oriented. 18. Learned counsel for the opposite party No. 2 has placed reliance the judgment Shakti Travel Tours Vs. Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 was clearly barred by the limitation. It was further observed that proviso appended to section 138 of N.I Act limits the applicability of the main provisions. Unless the conditions precedent for taking cognizance the offence under section 138 of NI Act is satisfied, the court will have no jurisdiction to take cognizance. The complaint petition in view of section 142 (b) of the NI Act was required to be filed within one month from the date on which the cause of action arose in terms of the clause (c) of the proviso to section 138 of the NI Act. The legal notice admittedly was issued on 17.01.2001. It was sent by the speed post. It was supposed to be served within a couple of days. Although the actual date of service of notice was allegedly not known, the complaint proceeded on the basis that the same was served within a reasonable period. The complaint petition admittedly was filed on 20.04.2001. The notice having been sent on 17.01.2001, if the presumption of the service of notice within a reasonable time is raised, it should be deemed to have been served at best within the period of 30 days from the date of issuance of thereof. In the situation, the complaint was hopelessly time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e complaint case was quashed. 22. The last citation relied upon by the opposite party No. 2 in Shyam Sunder Singh case (Jhr. H.C) is concerned with grant of certificate to file acquittal appeal by complainant and lays down no principle of law. 23. Now coming to the points of consideration involved in this case, in the light of above discussions and principles of law propounded by the Hon ble Apex Court, it is crystal clear that in the instant case, legal notice was issued on 19.12.2007 and the complaint was instituted just within one month i.e. 18.01.2008. As per presumptions under section 114 of Illustration(f) of the Evidence Act and section 27 of General Clauses Act, the service of notice upon the accused within a reasonable time is to be deemed and anything otherwise has to be rebutted by the accused by leading evidence. The stretching of the legal presumption for exactly 30 days and thereafter providing 15 days further time for making payment of cheque amount to a dishonest drawer of the cheque is nowhere justified under the law. Although, the said interpretation was accepted by the Hon ble Apex Court while computing the period of limitation in institution of the complaint cas ..... 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