TaxTMI 
TaxTMI 
2017 (5) TMI 1786
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....Judicial Magistrate-12, Agra on 29.04.2015 i.e. beyond 30 days of the date of return of the complaint on 13.03.2015 by the Addl. Chief Judicial Magistrate, Baadi, Dhaulpur, (Rajasthan). Thus, the complaint has been filed beyond limitation as provided by the judgment of Hon'ble Supreme Court in the case of Dashrath Rupsingh Rathod v. State of Maharashtra (2014) 9 SCC 129 (para 22). (ii) Without taking evidence the applicant was summoned by order dated 29.04.2015. (iii) Notice under Section 138 N.I. Act was not served upon the applicant and therefore, the complaint could not have been proceeded." 4. Learned A.G.A. submits that this application filed by the applicant is a glaring example of abuse of process of Court and to defeat the very object of Negotiable Instruments Act. He submits that from the record it appears that initially the complaint was filed before Additional Chief Judicial Magistrate, Court No. 1, Baadi, District Dhaulpur (Rajasthan) and the applicant was summoned on 25.09.2013 but the complaint was directed to be returned by the aforesaid learned Magistrate by order dated 18.03.2015. He submits that the complaint has been filed in accordance w....
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....urn the plaint prior to 18.03.2015. That apart, copy of the return memo has also not been filed along with the application. 8. Para 22 of the Judgment in the case of Dashrath Rupsing Rathod (supra), has been heavily relied by the learned counsel for the applicant which is reproduced below: "22. We are quite alive to the magnitude of the impact that the present decision shall have to possibly lakhs of cases pending in various Courts spanning across the country. One approach could be to declare that this judgment will have only prospective pertinence, i.e. applicability to Complaints that may be filed after this pronouncement. However, keeping in perspective the hardship that this will continue to bear on alleged accused/respondents who may have to travel long distances in conducting their defence, and also mindful of the legal implications of proceedings being permitted to continue in a Court devoid of jurisdiction, this recourse in entirety does not commend itself to us. Consequent on considerable consideration we think it expedient to direct that only those cases where, post the summoning and appearance of the alleged Accused, the recording of evidence has commenced as....
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....Magistrate, Court No. 1, Baadi, Dhaulpur (Rajasthan) to the opposite party No. 2 and as such it cannot be said that the complaint was not presented by the opposite party No. 2 within the time provided by the Hon'ble Supreme Court in the case of Dashrath Rupsing Rathod (supra). 10. The facts, as aforenoted, leave no manner of doubt that the opposite party No. 2 has filed a complaint case well within time before the court at Dhaulpur. The complainant was not at fault at any point of time. The commission of offence under Section 138 N.I. Act has been prima-facie made out against the applicant. In the present proceedings before the learned Addl. Chief Judicial Magistrate at Agra the applicant has appeared pursuant to the summons issued and the case is at the evidence stage. Copy of the order sheet shows that the applicant was avoiding his appearance and as such he was brought before the court by arrest on 05.09.2016 pursuant to the non-bailable warrant issued on 19.08.2016 against him. He was enlarged on bail on 05.09.2016 itself. The statement of the applicant has been recorded on 03.12.2016. The matter is pending before the learned Addl. Chief Judicial Magistrate at the stage ....
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....lies an act of forgiving the sinner of his sins upon confession. The expression has no doubt been used in some judicial pronouncements, but the same stop short of recognizing absolution as a juristic concept. It has always been used or understood in common parlance to convey "setting free from guilt" or "release from a penalty". The use of the expression "absolution" in Sadanandan Bhadran's case (supra) at any rate came at a time when proviso to Section 142(b) had not found a place on the statute book. That proviso was added by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 which read as under: "Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period." 27. The Statement of Objects and Reasons appended to the Amendment Bill, 2002 suggests that the introduction of this proviso was recommended by the Standing Committee on Finance and other representatives so as to provide discretion to the Court to waive the period of one month, which has been prescribed for taking cognizance of....
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....to safeguard and prevent harassment of honest drawers. (See Mosaraf Hossain Khan v. Bhageeratha Engg. Ltd. (2006) 3 SCC 658, C.C. Alavi Haji v. Palapetty Muhammed & Anr. (2007) 6 SCC 555 and Damodar S. Prabhu v. Sayed Babulal H. (2010) 5 SCC 663. Having said that, we must add that one of the salutary principles of interpretation of statutes is to adopt an interpretation which promotes and advances the object sought to be achieved by the legislation, in preference to an interpretation which defeats such object. This Court has in a long line of decisions recognized purposive interpretation as a sound principle for the Courts to adopt while interpreting statutory provisions. We may only refer to the decisions of this Court in New India Sugar Mills Ltd. v. Commissioner of Sales Tax, Bihar AIR 1963 SC 1207, where this Court observed: "It is a recognised rule of interpretation of statutes that expressions used therein should ordinarily be understood in a sense in which they best harmonise with the object of the statute, and which effectuate the object of the Legislature. If an expression is susceptible of a narrow or technical meaning, as well as a popular meaning, the Court wou....
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....e of notice for the purposes of Section 138 of the Act has been complied with by the opposite party No. 2. 18. Section 27 of the General Clauses Act provides for presumption of service by post as under : "27. Meaning of service by post- Where any [Central Act] or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expression "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post." 19. Perusal of Section 27 of the General Clauses Act, as aforequoted clearly indicates that there is a presumption of service by registered post. The provisions of the aforesaid Section 27 of the Act regarding presumption of service has been interpreted by Hon'ble Supreme Court and it has been held that there is a rebuttable presumption of service by registered post. ....
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.... v. Palapetty Muhammed (supra), Hon'ble Supreme Court considered the provisions of Section 138 of N.I. Act and Section 27 of the General Clauses Act, 1897 and held as under : "10. It is, thus, trite to say that where the payee dispatches the notice by registered post with correct address of the drawer of the cheque, the principle incorporated in Section 27 of the G.C. Act would be attracted; the requirement of Clause (b) of proviso to Section 138 of the Act stands complied with and cause of action to file a complaint arises on the expiry of the period prescribed in Clause (c) of the said proviso for payment by the drawer of the cheque. Nevertheless, it would be without prejudice to the right of the drawer to show that he had no knowledge that the notice was brought to his address. 14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to h....