TaxTMI 
TaxTMI 
2009 (5) TMI 545
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....out 20-11-2003 the appellant handed over a cheque bearing No. 0652756 dated 27-11-2003 for a sum of Rs. 1,00,000 in favour of the respondent. The said cheque was presented by the complainant for collection to his banker, namely, UCO Bank, Trichy Main Branch on 27-11-2003. It was dishonoured with the remarks "insufficient funds" on 2-12-2003. Information thereabout was received by the respondent on 3-12-2003. 4. On 2-1-2004, the respondent issued a legal notice to the appellant calling upon him to pay the amount in question within 15 days from the date of the receipt of the notice. Admittedly, the appellant neither sent a reply to the said notice nor paid the amount due. Respondent thereafter filed a complaint petition against the appellant under section 138 of the Negotiable Instruments Act, 1881 (for short "the Act") before the Judicial Magistrate No. III, Tiruchirapalli. 5. The learned Judicial Magistrate III convicted the appellant under section 138 of the Act and sentenced him to undergo one year's simple imprisonment and a fine of Rs. 5,000 and in default thereof to undergo further six months of simple imprisonment. He was also directed to pay a sum of Rs. 1,00,000 as....
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.... 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. Explanation.-For the purposes of this section, 'debt or other liability' means a legally enforceable debt or other liability." 10. By reason of the provisions of the Act, a legal presumption in regard to commission of a crime has been raised. The proviso appended thereto, however, states that nothing contained in the main provision would apply unless conditions specified in clauses (a), (b) and (c ) thereof are complied with. Clauses (a), ( b) and (c) of the proviso, therefore, lay down conditions precedent for applicability of the main provision. Section 138 of the Act being pe....
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.... ingredients thereof are required to be proved. What would constitute an offence is stated in the main provision. The proviso appended thereto, however, imposes certain further conditions which are required to be fulfilled before cognizance of the offence can be taken. If the ingredients for constitution of the offence laid down in the provisos (a), (b) and (c ) appended to section 138 of the Negotiable Instruments Act intended to be applied in favour of the accused, there cannot be any doubt that receipt of a notice would ultimately give rise to the cause of action for filing a complaint. As it is only on receipt of the notice the accused at his own peril may refuse to pay the amount. Clauses (b) and (c) of the proviso to section 138, therefore, must be read together. Issuance of notice would not by itself give rise to a cause of action but communication of the notice would." Keeping in view the aforementioned legal principle, interpretation of clause (b) of the proviso appended to section 138 of the Act has to be considered. 11. We may, however, at the outset notice that both clauses (a) and (b) of the proviso appended to section 138 of the Act employed the term "within a p....
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....ointed out that in the complaint it has been stated that the complainant had received intimation with regard to the return of the said cheque from his banker on 13-1-1994. However, he submitted that this is an apparent mistake and for explaining that mistake the appellant has led the evidence before the trial court. Undisputedly, he pointed out that in the State of Tamil Nadu, 14-1-1994 to 16-1-1994 there were Pongal holidays and, therefore, the appellant came to learn about the dishonour of his cheque on 17-1-1994." (p. 608) We, with respect, agree with the approach of the learned Judges. 13. Our attention has furthermore been drawn to a decision of the Kerala High Court in K.V. Muhammed Kunhi v. P. Janardhanan 1998 Crl. L.J. 4330, wherein construing proviso (a) appended to section 138 of the Act, a learned Single Judge held : "... A comparative study of both the Sections in the Act and the General Clauses Act significantly indicate that the period of limitation has to be reckoned from the date on which the cheque or instrument was drawn. The words 'from' and 'to' employed in section 9 of the General Clauses Act are evidently clear that in cases where there is an ambiguit....