TaxTMI 
TaxTMI 
2000 (2) TMI 822
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.... No, 1 The cheque was presented to the banker which was returned on 2nd August, 1996 with the remarks "Insufficient Fund". Thereafter within 15 days of return of the cheque, respondent No. 1 gave a notice of demand as required under proviso (b) to Section 138 of the Negotiable Instruments Act, 1881, as amended, (for short the Act). As the appellant failed to meet the demand, a complaint was filed before the Metropolitan Magistrate. On perusal of the above notice, the Magistrate was of the view that the (demand made in the notice being higher than the amount of the cheque), notice was bad in view of an earlier decision of the High Court. Respondent No. 1 approached the High Court by filing the revision petition which was allowed by the impug....
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....d with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or both : Provided that nothing contained in this section shall apply unless - (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 fifteen 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". (Empha....
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....ischief that it must have been intended to be included if thought of. On the other hand, the person charged has a right to say that he thing charged although within the words, is not within the spirit of the enactment. But where the thing is brought within the words and within the spirit, there a penal enactment is to be construed, like any other instrument, according to the fair commonsense meaning of the language used, and the Court is not to find or make any doubt or ambiguity in the language of a penal statute, where such doubt or ambiguity would clearly not be found or made in the same language in any other instrument." There is no ambiguity or doubt in the language of Section 138. Reading the entire Section as a whole and applying co....
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....ade drawer will be absolved from his liability under Section 138 if he makes the payment of the amount covered by the cheque of which he was aware within 15 days from the date of receipt of the notice or before complaint is filed. In Section 138 legislature clearly stated that for the dishonored cheque the drawer shall be liable for conviction if the demand is not met within 15 days of the receipt of notice but this is without prejudice to any other provision of the Act. If the cheque amount is paid within the above period or before the complaint is filed the legal liability under Section 138 will cease and for recovery of other demands as compensation, costs, interest etc., a civil proceeding will lie. Therefore, if in a notice any other ....