TaxTMI 
TaxTMI 
2022 (4) TMI 470
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....rayed that your Lordships may graciously be pleased to accept and allow this Criminal Special Leave to Appeal under Section 378(4) of Cr. P.C., and by treating this leave to appeal as appeal, the impugned order dated 27.10.2021 passed by learned trial court may kindly be set aside and the accused respondent may kindly be adequately punished for the criminal delinquency which he committed under the provision of N.I. Act, and or the matter be remanded to the trial court to proceed against the accused respondent and pass appropriate judgment according to law." 3. The factual matrix of case in brief is that the appellant/ complainant filed a complaint under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'Act of 1....
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.... 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"; the learned court below found that such prescription of law has not been satisfied in the present case, as the complaint in question has been preferred on 12th day i.e. before expiry of the mandatory period of 15 days from the date of service of notice upon the drawer/accused. 6. Learned counsel for the appellant further submits that 15 days' period prescribed under Section 138 of the Act of 1881 is not mandatory. Learned counsel also submits that Section 138 of the Act of 1881 cannot be construed to defeat the legislative intent behind enacting the Act of 18....
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....quired under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskarans case (supra), if the giving of notice in the context of Clause (b) of the proviso was the same as the receipt of notice a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act." 9. Learned counsel for the appellant further draws the attention of this Court towards the judgment rendered by the Hon'ble Allahabad High Court in Ravi Dixit Vs. State of U.P. an....
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.... it is averred in the complaint that the notice was served which was replied by the accused and, therefore, it cannot be said that the issuance of summons is bad in the eye of law. 12. In the case in hand, the petitioner herein replied to the notice which goes to show that the intention of the drawer is clear that he did not wish to make the payment. Once this is clarified, should the complainant wait for the minimum period of 15 days, the answer would be 'no'." 10. Learned counsel for the appellant thereafter harped upon the issue that notice under Section 138 of Act of 1881 was sent on 05.02.2010, but the same was refused to be taken on 10.02.2010. 11. Heard learned counsel for the appellant as well as perused the r....