Appeal dismissed due to late complaint filing and lack of evidence for enforceable debt.

Datta S. Nadkarni Versus Salvador Fernandes and Ors.

Datta S. Nadkarni Versus Salvador Fernandes and Ors. - TMI Issues Involved:
1. Whether the complaint can be said to be filed within time.
2. Whether the appellant proves that the cheque was issued towards discharge of a legally enforceable debt.

Issue-wise Detailed Analysis:

Point No. 1 - Limitation of Filing the Complaint:

The issue of limitation is crucial and must be addressed first. The relevant statutory provisions are Section 138 and Section 142(b) of the Negotiable Instruments Act, 1881. Section 138 outlines the conditions under which dishonour of a cheque constitutes an offence, including the requirement that the cheque be presented within six months, notice of dishonour be given within 30 days, and the drawer fails to pay within 15 days of receiving the notice. Section 142(b) mandates that the complaint must be filed within one month from the date on which the cause of action arises, i.e., the non-payment within 15 days of receipt of notice.

The primary question is the date of 'receipt' of the notice when it is refused or unclaimed by the drawer. The appellant argued that the date of receipt should be 01/06/2011, when the intimation of refusal was left at the appellant's house, making the complaint filed on 13/07/2011 timely. The respondent contended that the date of refusal, 24/05/2011, should be considered, making the complaint time-barred.

The court observed that under Section 27 of the General Clauses Act, 1897, service by post is deemed to be effected when properly addressed, pre-paid, and posted, unless proved otherwise. The court concluded that the date of actual refusal or unclaimed status (24/05/2011) should be considered the date of deemed service, not the date of intimation to the payee. This interpretation aligns with the statutory language and avoids placing the limitation period at the mercy of postal authorities.

The court also noted that the appellant did not seek condonation of delay, asserting that the complaint was timely. Consequently, the court found that the complaint was not filed within the prescribed time, answering Point No. 1 in the negative.

Point No. 2 - Legally Enforceable Debt:

Given the finding on Point No. 1, the issue of whether the cheque was issued towards a legally enforceable debt becomes secondary. However, the court addressed it for completeness.

Under Section 139 of the Act, a presumption arises in favour of the complainant when the accused admits the signature on the cheque. This presumption can be rebutted by the accused on a preponderance of probability, not necessarily requiring the accused to enter the witness box or produce independent evidence.

In this case, the appellant, an Advocate and Notary, claimed that the cheque was issued as repayment of a loan of Rs. 2 Lakhs. The respondent countered that the cheque was given as an advance for conveyancing services, which were not rendered. The appellant did not produce Income Tax Returns or other documents to substantiate the loan claim, despite stating that the amount was reflected in his returns. The court found that the non-production of these returns and other inconsistencies in the appellant's testimony raised an adverse inference.

The court concluded that the presumption under Section 139 was successfully rebutted by the respondent, answering Point No. 2 in the negative.

Conclusion:

The appeal was dismissed as the complaint was not filed within the statutory period, and the cheque was not proven to be issued towards a legally enforceable debt.