TaxTMI 
TaxTMI 
2006 (9) TMI 617
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....serving as a civil defence personnel. Applicant No. 2 Smt. Nirmala is the wife of Deepak Kumar. Being neighbour and persons connected with defense a close friendship and intimacy developed between the applicants and the complainant. As a result of the said intimacy between the two, the applicants took a loan of Rupees 1 lac from the complainant Rajbir Singh, respondent No. 2 on 12.4.04 with a promise to repay it within six months. A receipt cum agreement annexure No. l, was executed on a stamp paper to this effect on 12.4.04 itself. A cheque, dated 10.7.04, being cheque No. 087411 from Account No. 116, of Punjab and Sindh Bank, Sector 19 NOIDA, was also issued by the applicants as a guarantee on the said loan, on the condition that if, the loan amount was not paid within the stipulated period of time then the complainant was free to realise the loan amount by presenting the said cheque in the bank for encashment. As the applicants failed to repay the loan amount within the stipulated period the complainant, left with no other option to realize his money, deposited the said cheque for encashment on 13.7.2004 in his Syndicate Bank, Air Force Station, Hindon, Ghaziabad branch. Syndica....
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....otice or a single notice was sent under Section 138 of the N.I. Act by the complainant to the two applicants and who had received the said notice notices. Therefore, he submitted that no offence is made out against the applicants as it is not known as to on what date, the offence is made out in absence of the date of service of notice on the applicants. He also submitted that once the notice has been sent by a private courier there can not be any presumption under Section 114 of Evidence Act read with Section 27 of The General Clauses Act of service of notice on the applicants. He further contended that the complaint was pre mature and, therefore also, no offence is made out against the applicants. He further contended that the present complaint has been filed with malicious intention only for the purpose of harassment. 6. Learned Counsel for the respondent No. 2 along with learned AGA, contrarily, contended that the notice were served on the applicants and the complaint is not pre mature as fifteen days had lapsed before the complaint was filed in the court. They further argued that if, the notice is sent by courier service then the service on the applicants must be presumed as t....
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....re registered here as: (i) that a person must have an operative account in any bank(ii) he owns some debt or liability to any other person whether juristic legal, or not (Hi) a cheque is issued in the name of that person, to whom the debt or liability is owned by the account holder, from his such operative account in the bank, for the satisfaction of, whole or part payment, for the said debt or liability. (Such person who issues the cheque is called "drawer" of the cheque and the person in whose name the cheque is issued is called the "drawee" of the cheque.)(iv) the said cheque is presented by the person in whose name it is issued (drawee)or the holder of the cheque, in the bank for it's encashment with the period of it's validity or within six months of the date of it's issuance noted on the cheque (v) the bank had returned the said cheque unpaid or dishonoured or uncashed because of 'insufficiency of funds', with what ever terminology used by the bank for the said dishonour because of insufficiency of funds in the account from which the cheque had been issued by the drawer (vi) the person in whose name the cheque was issued (drawee) or holder in due course of....
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....isdiction to entertain the complaint for offence under Section 138 N.I. Act (emphasis supplied.) 9. Now the case of the complainant is to be judged in view of rival contentions raised at the bar and pleadings made herein in the application and counter affidavit on the above ingredients for making out offence under Section 138 N.I. Act. 10. Pondering over the rival contentions, I find that there is substance in the submissions raised by the counsel for the applicant. As a fact, neither in the-complaint, nor in statement under Section 200 Cr.P.C nor in the counter affidavit any date of service on notice demanding re-payment of cheque money from the applicants is mentioned. No document was also appended along with the complaint so as to indicate the said date. Even during the course of argument, the counsel for the respondent complainant could not point out the date of service of such notice. Thus, in the total absence of date of service of notice demanding payment of the cheque amount, no offence is made out against the applicants. Moreover, it cannot be said that any such notice was ever served on the applicants and consequently fifteen days period for making the payment of the c....