TaxTMI 
TaxTMI 
TaxTMI 
2024 (10) TMI 1680
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....edings are not called. 5. Mr Redkar would submit that the issue regarding notice forwarded beyond 30 days was raised before the trial Court, however, it was brushed aside by ignoring admission of PW1 and such findings are perverse to the record. 6. Mr Redkar submit that in an appeal filed before the Sessions Court, a specific argument was raised that the notice of demand was sent on the 31st day and thus there is non compliance of basic ingredients of Section 138 of the Negotiable Instruments Act, however, learned Sessions Court again wrongly calculated the period and found/observed that the demand notice was issued exactly on the last date i.e. 9.11.2020. 7. Mr Redkar would submit that 9.11.2020 is in fact 31st day from the date of receipt of memo from the bank. 8. Mr Redkar would further submit that provisions of General Clauses Act and Section 10 specifically would not be helpful to the respondent/complainant since notice which is required to be issued under Section 138 of the Negotiable Instruments Act is not necessarily required to be forwarded through post. Such notice could be by any other mode including sending it through courier, by hand delivery, by email etc. 9. Mr ....
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....g notice in writing to the drawer of the cheque demanding payment of the cheque amount, (5) failure of the drawer to make payment within 15 days of the receipt of the notice. 15. Thus it is clear that there are combined conditions which has to be complied with for constituting an offence under Section 138 of the Negotiable Instruments Act, out of which giving/sending notice in writing to the drawer within a period of 30 days from the date of receipt of intimation from the bank, is one of the important condition. 16. Offence is complete if all these five conditions are fulfilled. Even if there is violation of one of the conditions or non compliance of it, it cannot be said that offence stands completed for the purpose of lodging the complaint under Section 138 of the Negotiable Instruments Act. 17. The Apex Court further observed that conditions pertaining to the notice to be given to the drawer have been formulated and incorporated in clauses (b) and (c) of the proviso. Thus, it is mandatory on the part of the payee that he has to make a demand of the amount mentioned in the cheque by giving notice in writing within a period of 30 days from the date of receipt of the intimation ....
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....owledgment. However, it was actually posted on 9.11.2020, which admittedly was the 31st day from the date of receipt of the intimation from the bank. 22. It is admitted in the complaint as well as in demand notice that the complainant presented the cheque issued by the applicant for encashment. However, it was returned unpaid for the reasons "Funds insufficient" and said fact of dishonour to the cheque was intimated to the complainant on 9.10.2020. This averment is found in paragraph 7 of the complaint. 23. Counting of 30 days otherwise from 10.10.2020 as the date of receipt of intimation has to be excluded. Accordingly, remaining days in the month of October from 10.10.2020 were 22 days. Period of 30 days thus expired on 8.11.2020. 24. Complaint filed before the Magistrate would go to show that and more specifically in paragraph 8 that a legal notice through Advocate dated 6.11.2020 was sent by registered post to the accused, it was received by the accused on 9.11.2020. 25. Copy of the demand notice produced before the learned Magistrate also shows the date as 6.11.2020. Examination in chief/verification of PW1/Complainant would go to show that the notice was sent on 6.11.2020....
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....e to be considered as given within 30 days. 30. Section 10 of the General Clauses Act reads thus:- "10. Computation of time.-(1) Where, by any [Central Act] or Regulation made after the commencement of this Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open: Provided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act, 1877, applies. (2) This section applies also to all [Central Acts] and Regulations made on or after the fourteenth day of January, 1887." 31. Per contra Mr Redkar would submit that in order to comply such provision, complainant is bound to plead and prove that he is entitled for such exemption and since the complaint as well as evidence of PW1 is clearly silent on it, complainant cannot be allowed to take recourse to provisions of Section 10 of the General Clauses Act, now in th....
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....t he came to know about the dishonour of the cheque on 10-11-2008 itself. It is for this reason that the appellant has filed a reply-affidavit stating that this is an afterthought plea as no material has been filed before the court below to show that the Bank had issued a memo about the return of the cheque which was received by the complainant on 17-11-2008. The specific averment made in the complaint in this behalf is as under: "Subsequently the complainant again went to encash the cheque given by the accused on 10-11- 2008 which again bounced due to unavailability of balance in the accused's account." It is, thus, clear from the aforesaid averment made by the complainant himself that he had gone to the Bank for encashing the cheque on 10- 11-2008 and found that because of unavailability of sufficient balance in the account, the cheque was bounced. Therefore, it becomes obvious that he had come to know about the same on 10-11- 2008 itself. In view of this admission in the complaint about the information having been received by the complainant about the bouncing of the cheque on 10-11-2008 itself, no further enquiry is needed on this aspect. 36. In the case of Munoth Inv....
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....ation a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law."] There are several previous judgments of this Court holding that where periods of limitation are prescribed under special laws, appeals that exceed the period granted and are within the extended period of limitation in the special law, can be entertained at the discretion of the tribunal, or court concerned and the Limitation Act would not apply upon expiry of such extended period. [Kaushalya Rani v. Gopal Singh, (1964) 4 SCR 982 : AIR 1964 SC 260 : (1964) 1 Cri LJ 152; CCE v. Hongo (India) (P) Ltd., (2009) 5 SCC 791; Union of India v. Popular Construction Co., (2001) 8 SCC 470; Patel Bros. v. State of Assam, (2017) 2 SCC 350 : (2017) 1 SCC (Civ) 658] This Court holds that there is merit in the....
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....o have been done within that period, if it is done on the next day on which the court or office is open. For that section to apply, therefore, all that is requisite is that there should be a period prescribed, and that period should expire on a holiday." 21 Other decisions [Manohar Joshi v. Nitin Bhaurao Patil, (1996) 1 SCC 169; Mohd. Ayub v. State of U.P., (2009) 17 SCC 70 : (2011) 1 SCC (L&S) 580] have followed the same reasoning. It is also noticeable that there is no indication in the NGT Act that Section 10 of the General Clauses Act cannot be applied. It is, therefore, held that the provision applies proprio vigore to all appeals filed under the NGT Act." 38. In the case of My preferred Transformation and Hospitality Pvt. Ltd (supra) Delhi High Court discussed the period of limitation with regard to an appeal filed under Section 37 of the Arbitration and Conciliation Act in which provisions of General Clauses Act were taken into account. 39. Present matter is admittedly an action with regards to breach of making payment which is triable as an offence by a Magistrate. Though it is considered as quasi criminal proceeding, however, consequences of it could be imprisonment as....
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.... 6.11.2020. The words "giving notice" would actually mean that it has to be interpreted as forwarding and disbursing the notice to the address of the drawer. 44. Record clearly goes to show that notice was in fact dispatched on 9.11.2020 whereas the period of 30 days was over on 8.11.2020. 45. Contention now raised on behalf of the respondent/ complainant that 8.11.2020 was a Sunday and therefore notice was dispatched on 9.11.2020, is not borne out of the record. Complaint, verification of the complainant as well as affidavit of PW1 would clearly go to show that notice was sent on 6.11.2020. Thus it is consistent case of the complainant that the notice was sent on 6.11.2020, which in fact was not, as admitted by PW1 during cross examination. 46. When the period of 30 days as provided under clause (b) of proviso to Section 138 cannot be extended, complainant cannot take advantage of Section 10 of the General Clauses Act since it is not mandatory that the notice must be forwarded through postal department and that too by registered post with acknowledgment due. 47. Thus, the observation of the learned Magistrate and that of the First Appellate Court with regard to notice dispatch....