TaxTMI 
TaxTMI 
2001 (1) TMI 896
X X X X Extracts X X X X
X X X X Extracts X X X X
....e was dishonoured on account of insufficiency of funds in the account of the accused. The information regarding non-payment of the cheque amount was communicated by the Bank to the complainant on 2-6-1998. The complainant on 13-6-1998, through its Advocate, issued a statutory notice in terms of section 138 intimating Respondents No. 1 and 2 regarding the dishonour of the cheque and calling upon the respondents to pay the said amount within a period of 15 days from the receipt of the said notice. The postal acknowledgement receipt of the notice, served upon the respondents, was received by the complainant on 15-6-1998. However, the respondents 1 and 2 vide their letter dated 20-6-1998, which was received by the Advocates of the appellant on 30-6-1998, intimated that they had in effect received empty envelopes without any contents and requested the appellant to mail the contents. It is worth noticing that by the time the complainant received the intimation of the respondents, the statutory period of filing the complaint was about to expire. Believing the averments of the respondents to be true, though not admitting but as an abundant caution the appellant presented the cheque again o....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... be interpreted in the light of the objects intended to be achieved by it despite there being deviations from the general law and the procedure provided for the redressal of the grievances to the litigants. Efforts to defeat, the objectives of law by resorting to innovative measures and methods are to be discouraged, lest it may affect the commercial and mercantile activities in a smooth and healthy manner, ultimately affecting the economy of the country. 4. Section 138 makes a civil transaction to be an offence by fiction of law. Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person is returned by the bank unpaid either because of the amount or money standing to the credit of that person being insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account, such person, subject to the other conditions, shall be deemed to have committed an offence under the section and be punished for a term which may extend to one year or with fine which may extend to twice the amount of cheque or with both. To make the dishonour of the cheque as an offence, the aggrieved party is....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fence within the meaning of section 138. 6. To constitute an offence under section 138, the complainant is obliged to prove its ingredients which include the receipt of notice by the accused under clause (b). It is to be kept in mind that it is not the 'giving' of the notice which makes the offence but it is the 'receipt' of the notice by the drawer which gives the cause of action to the complainant to file the complaint within the statutory period. This Court in K. Bhaskaran v. Sankaran Vaidhyan Balan [1999] (7) SCC 510 considered the difference between 'giving' of a notice and 'receipt' of the notice and held : "On the part of the payee he has to make a demand by 'giving a notice' in writing. If that was the only requirement to complete the offence on the failure of the drawer to pay the cheque amount within 15 days from the date of such 'giving', the travails of the prosecution would have been very much lessened. But, the legislature says that failure on the part of the drawer to pay the amount should be within 15 days 'of the receipt' of the said notice. It is, therefore, clear that 'giving notice' in the context is not the same as receipt of notice. Giving is a process of wh....
X X X X Extracts X X X X
X X X X Extracts X X X X
....concerned ? In this connection a reference to section 27 of the General Clauses Act will be useful. The section reads thus : '27. Meaning of service by post - Where any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression 'serve' or either of the expression 'give' or 'send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.'" 7. Section 27 of the General Clauses Act deals with the presumption of service of a letter sent by post. The despatcher of a notice has, therefore, a right to insist upon and claim the benefit of such a presumption. But as the presumption is rebuttable one, he has two options before him. One is to concede to the stand of the sendee that as a matter of fact he did not receive the notice, and the other is to contest the sendee's stand and take the risk for proving....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ended that the cause of action having accrued on the expiry of 15 days from the date of notice sent by fax on 26-6-1996, the limitation for filing the complaint expired on 27-6-1996, therefore, the complaint filed on 8-8-1996 could not be taken cognizance of by the trial court. Allowing the appeal this Court held : "The language used in the above section admits of no doubt that the Magistrate is forbidden from taking cognizance of the offence if the complaint was not filed within one month of the date on which the cause of action arose. Completion of the offence is the immediate forerunner of rising of cause of action. In other words cause of action would arise soon after completion of the offence, and the period of limitation for filing the complaint would simultaneously start running. To circumvent the above hurdle, the respondent submitted that 15 days can be counted only from 25-6-1996, the date when the appellant received the notice sent by registered post and the cause of action would have arisen only on 11-7-1996. The complaint which was filed on 8-8-1996 is therefore within time, according to the learned counsel for the respondent. ****** The requirement for sending a n....