2020 (2) TMI 172

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....red, he remained unrepresented and vide order dated 26.09.2019, his right to file reply was closed. 3. Learned counsel for the petitioner submitted that as per the case of the complainant, the petitioner was given cash loan of Rs. 50,000/- on 20.04.2016 which was promised to be returned in eight months. After eight months, the complainant approached the petitioner who paid back Rs. 19,500/- and sought time of one month to pay the balance amount. In December 2016, the petitioner issued a cheque bearing No.893122 dated 30.12.2016 drawn on Dena Bank, Gandhi Nagar, for Rs. 30,500/-, which on presentation, was dishonoured through return memo dated 02.01.2017 with remarks "funds insufficient". The complainant sent a legal notice dated 06.02.20....

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.... was not maintainable as it was filed without satisfying all the three conditions laid down in Section 138 of the N. I. Act as explained in para 12 of the judgment in the case of MSR Leathers, extracted above." 7. In Sivakumar v. Natrajan reported as (2009) 13 SCC 623, the Supreme Court re-affirmed the following observations made in Harman Electronics (P) Ltd. v. National Panasonic India (P) Ltd. reported as (2009) 1 SCC 720:- 13. 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 offence under Section 138 of the Nego....

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....ion was received by the respondent from the bank on 3-12-2003. 11. 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 Parliament, therefore, deserves serious consideration. 12. Indisputably, the notice was issued on the 31st day and not within a period of thirty days from....

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....ver, 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, 14-11994 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." We, with respect, agree with the approach of the learned Judges." 9. A Co-ordinate Bench of this Court in Dheeraj Jain (supra) held as under: - "8. A perusal of the Clause (b) to proviso to the Section clearly states that nothing contained in the section shall apply unless the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of th....