TaxTMI 
TaxTMI 
2017 (7) TMI 578
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....ing the statement cognizance were taken in both the complaints by the trial court. On service of the notice, petitioners have filed a preliminary objection on 6.7.2012 inter alia contending that in private complaint No.233/08, a notice for dishonouring was issued on 20.12.2007, which remained unclaimed by the noting of the postal department dated 1.1.2008 and the complaint was filed on 14.1.2008 prior to expiry of the period of 15 days; while in complaint case No.234/08, the notice was given on 20.12.2007 to which the intimation was given to the accused on 24.12.2007 and return by the postal department on 3.1.2008, however, filing of the complaints on 14.1.2008 is prior to expiry of the period of 15 days. Counsel for applicant referring the provisions of Section 138 of the Negotiable Instruments Act, 1988 (in short "N.I. Act") contends that for dishonouring of the cheque giving the notice by the payee to the drawer within 30 days from the receipt of intimation of dishonouring from the bank is a sine qua non as per Section 138 (b) of the N.I. Act, however the offence is deemed to have committed but if the amount has not been paid within 15 days from the date of receipt of the notice....
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....purpose of prosecuting the complaints of Section 138 (b) & (c) of the N.I. Act. 4. Per Contra, learned counsel representing the complainant/respondent placed heavy reliance on the judgment of K. Bhaskaran (Supra) referring paragraphs no.20 to 25 and strenuously urged that in a case, the drawer intentionally and tactfully is not accepting the notice sent by the petitioner then in such case, the date of intimation of the said notice given to him on a correct address would be presumed to be the date of receipt of notice. However, if the said date is taken into consideration then filing of the present complaints is after expiry of the period of 15 days, however, it is prosecutable, therefore, the trial Court as well as revisional Court have not committed error in passing the order impugned and taking cognizance against the petitioner. Reliance has further been placed on the judgment of this Court in the case of Agrawal Medical Agencies Vs. Govind Prasad 2012(2) MPLJ 147 to contend that in reference to Section 27 of the General Clauses Act as well as relying upon the provisions of Section 114 of Evidence Act, the Court has interpreted the meaning of the word "Service of notice" in the ....
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....be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. 7. On plane reading of the aforesaid, it is apparent that on is advancing loan and to in discharge of the debt or other liability, if the cheque given by the drawer to the payee has returned unpaid with a note of insufficiency of fund or it exceeds the amount arranged to be paid from the account then such person shall be deemed to have committed an offence and shall without prejudiced to any other provisions of this Act, he or she be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both. The aforesaid basic provision has been qualified by the proviso using the word "that nothing contained in section 138 shall apply unless", the requirement contemplated under clause (a), (b) and (c) has been observed, which are mandatory. As per the requirement (a), the cheque must be presented before the bank from the date of its issuance within a period of six months or its period of validity whichever is earlier. Clause (b) makes it clear that payee or the holder in due course of the cheque, as the....
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....n safely be held that the notice was returned as unclaimed on 1.1.2008 and 3.1.2008 and the complaints were filed on 14.1.2008, however, prior to expiry of period of 15 days, cause of action to take cognizance and to prosecute the complainant do not arise, therefore, the order taking cognizance passed by the trial Court, affirmed by the revisional Court deserves to be set aside and those complaints are liable to be dismissed. 10. Reverting to the arguments as advanced by the learned counsel for the complainant that the notice was issued on 20.12.2007 which was received to the Post Office and intimation was given by the Post Office to the drawer on 24.12.2007, however, the first date of intimation ought to be counted as a date of notice unclaimed by the petitioner. In this context, much emphasis has been laid on the paragraphs of the judgment of Apex Court in the case of K. Bhaskaran (supra). On perusal of the judgment of K. Bhaskaran (supra), it is apparent that the notice in the said case was given on 2.2.1993 and it was returned to the complainant on 15.2.1993, thereafter, the complaint was filed on 4.3.1993 after elapse of the period of 15 days. While in the present case, the n....