TaxTMI 
TaxTMI 
TaxTMI 
2025 (7) TMI 1776
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....nt of arrears of rent. There is no dispute with respect to the handwriting, signature etc. of Ex. P/1's cheque. Appellant received Ex. P/2's information on 13.10.1993 and Ex. P/3's information on 14.10.1993, Ex. P/4's demand notice was issued to respondent/accused on 20.10.1993. As per Section 138 (b) of N.I. Act, notice is required to be issued within 15 days from date of receipt of information pertaining to dishonour of cheque. Thus, Ex. P/4's demand notice was issued within limitation prescribed in the law. It is correct that aforesaid notice was received by respondent/accused on 02.11.1993 (Ex. P/5). Learned trial Court has wrongly calculated period mentioned in Section 138(b) of N.I. Act. Trial Court has calculated limitation from the date of receipt of notice which is against provision of law as mentioned in Section 138(b) of N.I. Act and principle laid down by Hon'ble Apex Court in C.C. Alavi Haji Vs. Palapetty Muhammed and another, (2007) 6 SCC 555. Hence, learned trial Court has wrongly acquitted respondent/accused. Therefore, appeal filed by the appellant is allowed and respondent/accused be convicted for offence under section 138 of N.I. Act. 4. Learned counsel for the ....
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.... same as receipt of notice. Giving is a process of which receipt is the accomplishment. It is for the payee to perform the former process by sending the notice to the drawer at the correct address and for the drawer to comply with Clause (c) of the proviso. Emphasizing that the provisions contained in Section 138 of the Act required to be construed liberally, it was observed thus: "20. If a strict interpretation is given that the drawer should have actually received the notice for the period of 15 days to start running no matter that the payee sent the notice on the correct address, a trickster cheque drawer would get the premium to avoid receiving the notice by different strategies and he could escape from the legal consequences of Section 138 of the Act. It must be borne in mind that Court should not adopt an interpretation which helps a dishonest evader and clips an honest payee as that would defeat the very legislative measure. 21. In Maxwell's Interpretation of Statues the learned author has emphasized that "provisions relating to giving of notice often receive liberal interpretation," (vide page 99 of the 12th Edn.) The context envisaged in Section 138 of the Act in....
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....issues notice to the drawer of the cheque, the cause of action to file a complaint arises on the expiry of the period prescribed for payment by the drawer of the cheque. If he does not file a complaint within one month of the date on which the cause of action arises under Clause (c) of the proviso to Section 138 of the Act, his complaint gets barred by time. Thus, a person who can dodge the postman for about a month or two, or a person who can get a fake endorsement made regarding his non availability, can successfully avoid his prosecution because the payee is bound to issue notice to him within a period of 30 days from the date of receipt of information from the bank regarding the return of the cheque as unpaid. He is, therefore, bound to issue the notice, which may be returned with an endorsement that the addressee is not available on the given address. This Court held: "15. We cannot also lose sight of the fact that the drawer may by dubious means manage to get an incorrect endorsement made on the envelope that the premises has been found locked or that the addressee was not available at the time when postman went for delivery of the letter. It may be that the address is cor....
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....t that of respondent. In this connection, respondent/accused has not examined any handwriting expert to prove that on receipt Ex.P/5, C to C signatures are not that of respondent/accused. There is no endorsement on Ex.P/5's receipt or on Ex.P/4's notice that Ex.P/4's notice was not sent on correct address or it was sent on incomplete address. There is no endorsement on aforesaid that addressee was not found. Hence, returned unserved. 10. In the instant case, appellant/complainant received information from Bank about dishonor of Ex.P/1's cheque on 13.10.1993 (Ex.P/2)/15.10.1993 (Ex.P/3) and Ex.P/4's demand notice was sent on 20.10.1993 by registered post. This is also evident from Ex.P/5's receipt. Thus, Ex.P/4's demand notice was sent within 15 days of receipt of information with respect to dishonor of Ex.P./5's cheque. 11. Hence, in view of discussion in the foregoing paras as well as provision contained in proviso (b) of Section 138 of NI Act as well as principle of law laid down by Hon'ble Apex Court in the case of C.C.Alavi Hajzi (supra), it cannot be said that demand notice (Ex.P/4) sent by appellant/complainant was not within limitation as prescribed under the law and limit....