TaxTMI 
TaxTMI 
2018 (3) TMI 2072
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....bove said fine amount of Rs. 50,500/-, it is ordered that an amount of Rs. 50,000/- shall be paid to the complainant as compensation in terms of Sec. 357(1)(b) of the Cr.P.C. Aggrieved by the said conviction and sentence, the accused had preferred Crl.A. No .450/2003 before the appellate Sessions Court, Kottayam. The appellate court concerned (Court of Additional Sessions Judge, Kottayam), as per the impugned judgment rendered on 18.6.2004 has allowed the said Criminal Appeal filed by the accused and has set aside the conviction and sentence imposed on him as per the impugned judgment and has set him at liberty. Being aggrieved by the said impugned judgment of acquittal rendered by the appellate Sessions Court, the complainant had preferred Criminal Leave Petition No. 631/2004 before this Court seeking special leave of this Court under Sec. 378(4) of the Cr.P.C so as to impugn the said judgment. This Court as per order dated 18.10.2004 had allowed the said plea and had granted special leave to the complainant. It is on this basis that the instant Criminal Appeal has been filed. 2. Heard Sri. M.J. Thomas, learned counsel appearing for the appellant/complainant, Sri....
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....- from the complainant, at which point of time, he had given a blank cheque as security and he had discharged the liability, but the blank cheque was not returned by him even on repeated demand and the relationship between the complainant and accused has been strained and the complainant has misused the above said blank cheque and utilised the same for instituting the above complaint, etc. Both the courts below have found that except the above suggestion, the defence has not been able to bring in any clinching factual circumstance in the evidence tendered so as to fortify the basis of such a suggestion. Therefore, the said defence taken up by the accused has stood only in the realm of defence suggestion and nothing more. 6. Another specific contention taken up by the accused was to the effect that he has never been served with Ext.P-3 statutory demand notice dated 3.11.1990. To establish the contention in that regard, he had examined DWs 1 & 2. DW-1 is the Sub Divisional Inspector of the Postal Sub Division concerned at the relevant time and DW-2 is the postman. Evidence of these defence witnesses are clearly to the effect that the postman concerned had made hectic efforts for t....
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....asmuch as it has come out in evidence that Ext.P-3 demand notice was returned back to the complainant on 16.11.1990, whereas the instant complaint has been filed on 29.11.1990 without waiting for the 15 days from the date of deemed receipt of the notice. The trial court has found that the said argument is also bereft of any merit inasmuch as it has come out in evidence of DWs 1 & 2 that the date of tendering of notice by postman to the accused can be taken as 5.11.1990, which is the first date, on which it was sought to be served in the address of the accused. If that be so, the complaint filed on 29.11.1990 cannot be said to have been prematurely filed. It has been duly filed after 15 days as mandated in proviso (c) of Sec. 138 of the N.I. Act. On this limited point, the appellate court has differed from the view of the trial court and has held that the reckoning of the 15 days time limit as envisaged in Sec. 138 proviso (c) could be taken in a case where registered notice has been returned by the sender as unclaimed only from the date of return of such notice. That only in such a case registered notice was returned to the complainant only on 16.11.1990 and that therefore, the com....
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....'s case supra that the reckoning of date of deemed receipt as the date of return of notice is unlikely to result in any prejudice to any one as even the accused would only get further time from such date of deemed service to discharge the liability due under the cheque. 11. This Court in yet another judgment in Kailasanathan. K.G. v. Sajish Babu & Kuttan & Anr. reported in 2012 (2) KHC 529 = ILR 2012 (3) Ker. 557 = 2012 (2) KLJ 704, has held that the date on which the notice is said to have been served on the accused, is the date when the complainant received the returned postal cover or so informed by the postal authority, regarding the service of notice and it is not the date when the postman made endorsement, that the addressee refused or returned the postal article unclaimed. In the said a case, the contention raised by the accused was that the date of deemed service should be taken as the date when the postman made the endorsement that the addressee refused or returned unclaimed and if that view is taken, some times if the postal cover is not returned to the sender within a reasonable time, it creates confusion and unnecessary hardship to the payee. Therefore, it was he....
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....ostal articles were not delivered to the sender after one or two months. In such cases if the sender did not take steps to ascertain what actually transpired then perhaps the position may be different. But that is not the case here. In the light of what has been stated above, the contention that 27/04/2004 should be reckoned as the date of deemed service is well merited. Since the complaint was filed on 03/06/2004 it is found to be well within the time and as such the order of acquittal on the ground of delay in filing the complaint is unsustainable." 12. The Apex Court in the judgment in D. Vinod Shivappa v. Nanda Belliappa, (2006) 6 SCC 456 has categorically held that going by the provisions contained in Sec. 138 proviso (c) and Sec. 142 of the N.I. Act, the cause of action to prosecute the drawer of the cheque arises when the drawer fails to make payment within 15 days of "receipt of notice". It was held that the said section shall not apply unless the drawer of the cheque fails to make the payment within 15 days of receipt of the said notice. That the said proviso is meant to protect honest drawers whose cheques may have been dishonoured for the fault of others or who may ha....
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....romise but on account of inadvertence or negligence failed to make necessary arrangements for the payment of the cheque. The proviso is not meant to protect unscrupulous drawers who never intended to honour the cheques issued by them, it being a part of their modus operandi to cheat unsuspecting persons. 14. If a notice is issued and served upon the drawer of the cheque, no controversy arises. Similarly if the notice is refused by the addressee, it may be presumed to have been served. This is also not disputed. This leaves us with the third situation where the notice could not be served on the addressee for one or the other reason, such as his non-availability at the time of delivery, or premises remaining locked on account of his having gone elsewhere, etc. etc. If in each such case the law is understood to mean that there has been no service of notice, it would completely defeat the very purpose of the Act. It would then be very easy for an unscrupulous and dishonest drawer of a cheque to make himself scarce for some time after issuing the cheque so that the requisite statutory notice can never be served upon him and consequently he can never be prosecuted. There is good....
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....address of the accused. This would result in the complaint that may be so filed later, as barred by limitation. In this context, it is noteworthy to mention that prior to the amendment introduced by Sec. 9 of the Central Amendment Act 55 of 2002, made effective from 6.2.2003, there was no power conferred on the criminal court to condone the delay in filing a complaint for offence punishable under Sec. 138 of the Negotiable Instruments Act in view of the mandatory provisions contained clause (b) of Sec. 142 of the N.I. Act, as it stood then, which mandated that complaint is to be filed within one month of the date, on which the cause of action arises under clause (c) of proviso to Sec. 138, etc. It was only later as per the said Amendment Act, 55 of 2002 made effective from 6.2.2003 that the Parliament had engrafted proviso to clause (b) of Sec. 142(1) providing that cognizance of the complaint could 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 stipulated period. So in a situation as in the instant case, which is covered by the provisions that existed prior to the Act 55 ....