TaxTMI 
TaxTMI 
2009 (5) TMI 545
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.... Judge, Tiruchirapalli dated 8-11-2005 passed in Crl. A. No. 87/2005, preferred against the judgment dated 3-5-2005 in CC No. 69/2004 by the learned Judicial Magistrate III, Tiruchirapalli. 3. On or about 14-8-2003, appellant borrowed a sum of Rs. 1,00,000 for the purpose of his business as loan from the complainant-respondent. The said amount was to be repaid within a period of three months. On or about 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. I....
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....ture, with the consensus of both the parties, on the assurance of the 2nd party, the 2nd party shall receive a sum of Rs. 30,000 from the 1st party and shall not take any action against the judgment rendered by the Court and there shall be no interest over the issue before or after the settlement and as such we both have signed in the presence of the witnesses. 2nd party has also consented to issue a receipt for having received the said amount to the 1st party." 9. The core question which arises for consideration is as to whether the notice dated 2-1-2004 was issued within the stipulated period of thirty days from the date of receipt of intimation of the dishonour of cheque. Section 138 of the Act reads as under : "Dishonour of cheque fo....
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....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 penal in nature, indisputably, warrants strict construction. In Harman Electroni....
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.... 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 which receipt is the accomplishment. It is for the payee to perform the former process by sending the notice to the drawer at the correct address.' ****** 14. It is one thing to say that sending of a notice is one of the ingredients for maintaining the complaint but it is another thing to say that dishonour of a cheque by itself constitutes an offence. For the purpose of proving its case that the accused had committed an offen....
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....pt of information". The words "within thirty days of the receipt of information" are significant. Indisputably, intimation was received by the respondent from the bank on 3-12-2003. The Parliament advisedly did not use the words 'from the date of receipt of information' in section 138 of the Act. It is also of some significance to notice that in terms of section 9 of the General Clauses Act, 1897, whereupon reliance has been placed by the High Court, the statute is required to use the word "from" and for the purpose of including the last in a series of days or any other period of time, to use the word "to". The departure made from the provisions of section 9 of the General Clauses Act by the Parliament, therefore, deserves serious conside....
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....ard 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 compa....