2016 (9) TMI 1460

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....e accused was not able to repay the amount within the agreed period of three months and therefore, he issued a cheque drawn on ICICI Bank, Dindigul dated 22.09.2012. When the cheque was presented for collection to the Central Bank of India on 25.09.2012, the cheque was returned with endorsement insufficient funds. Thereafter, the respondent issued a notice through his counsel on 29.09.2012, demanding payment of the amount covered under the cheque. After receipt of the notice, accused / petitioner sent a reply denying the receipt of the cheque amount and also alleged that the respondent has no source to lend such huge money. The petitioner / accused failed to pay the amount within fifteen days after the receipt of the notice, as prescribed u....

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....5 days? time to the petitioner as contemplated under Section 138(b) of the NI Act and the complaint was premature and should not have been entertained, the single Judge held, ??.. from the above, it is clear that he received the notice back on 21.09.1989. Even accepting that the petitioner refused the notice on 20.09.1989, the respondent ought to have filed this complaint after the expiry of 15 days from the date of receipt of the notice. The date of issuance of notice cannot be taken into account??.. Therefore, the cause of action had not arisen to file the complaint against the petitioner and the complaint was premature? 4.2. From the refusal, there cannot be any inference that the accused refused to make the payment. The refusal ma....

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....d period will in such cases diffuse the element of criminality that Section 138 attributes to dishonour by way of a legal fiction implicit in the use of the words ?shall be deemed to have committed an offence?. The drawer would by such payment stand absolved by the penal consequences of dishonour. This scheme may be unique to Section 138 NI Act, but there is hardly any doubt that the Parliament is competent to legislate so to provide for situations where a cheque is dishonoured even without any criminal intention on the part of the drawer. 5. Thus, this section gives an opportunity not only to the honest drawer, but also to a dishonest drawer to make amends and to escape from prosecution. So far as this case is concerned, the alleged dis....

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.... receipt of the said statutory notice. Therefore, once the drawer denies the payment, in spite of the said statutory notice, the payee need not wait for completion of fifteen days to lapse from the date of receipt of the notice or for the mercy of change of mind of the drawer to make payment. If the drawer, in case, changes his mind and makes the payment within the said fifteen days time in spite of his earlier denial, the complaint filed after the denial would become infructuous, but such surmise or assumption or presumption cannot invalidate the cause of action itself, that arises out of the denial of payment by the drawer, even after the receipt of the statutory notice issued under proviso (b) to Section 138 of the Negotiable Instruments....