TaxTMI 
TaxTMI 
2026 (7) TMI 639
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....Rs. 65,520/- (Rupees Sixty-five Thousand Five Hundred and Twenty Only) issued by the accused, who stood as surety for a chitty transaction for the subscriber in chitty No. G3.E.229/18, prosecution was launched by the complainant alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act, 1881. (for short, 'the NI Act' hereinafter), by the accused/1st respondent. 4. The learned Magistrate took cognizance of the said offence and tried the case. During trial, PW1 and PW2 were examined and Exts.P1 to P8 were marked on the side of the complainant. On the side of the defence, Exts.D1 and D2 were marked. 5. The learned Magistrate, on appreciation of evidence found that the complainant proved the transaction led to the execution of the cheque so as to avail presumption under Section 139 of the NI Act, where the accused failed to rebut the said presumption. Accordingly, the accused was sentenced to undergo simple imprisonment for a period of 3 months and to pay a compensation of Rs. 65,520/- under Section 357(3) of the Code of Criminal Procedure, 1973 (for short, 'the Cr.P.C. hereinafter). Challenging the said judgment, the accused filed appe....
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.... sender since the more reasonable, effective, equitable and practical interpretation that could be put to the word 'receipt' is the tender of the letter by the postal peon at the address mentioned in the letter. At the same time, in a later decision of this Court in Kailasanathan K.G. v. Sajish Babu @ Kuttan and Another reported in [2012 (2) KHC 529], this Court considered the same question and held as under: "The contention raised by the accused is 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. If that view is taken then sometimes, if the postal cover is not returned to the sender within a reasonable time, it would create confusion and unnecessary hardship to the payee. Therefore, there is merit in the submission made by the learned counsel for the complainant that the expression 'the date of receipt of the said notice' in proviso (c) to S.138 of NI Act should receive a very reasonable, practical and realistic interpretation and not an interpretation which would create confusion or which is likely to defeat the very object of the provision. The presumption of 'de....
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....e period of 15 days contemplated in clause (c) to the proviso of Section 138 of the Act. Of course such reckoning would be without prejudice to the right of the drawer of the cheque to show that he had no knowledge that the notice was brought to his address. In the present case the accused did not even attempt to discharge the burden to rebut the aforesaid presumption." 11. Finally, this Court in K.Cherian Kurian's case (supra) also referred the decision in Kailasanathan's case (supra) and in paragraph No. 13, this Court found as under: "13. The upshot the light of abovesaid discussion is that in a case like the instant one, where the statutory demand notice under Sec.138 proviso (b) is resumed unversed/unclaimed, then the date on which the notice said to have been served on the accused as contemplated in Sec. 138 proviso (c), is the date when the complainant received the returned postal cover or was so informed by the postal authority regarding the service of notice and it is not the date when the postman made the endorsement that the addressee refused or return the post article unclaimed. As held by this Court in the aforesaid judgments, reckoning of the date of deeme....
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.... by the Apex Court in K.Bhaskaran's case (supra) and by this Court in Kailasanathan's case (supra) and K. Cherian Kurian's case (supra) will hold the field insofar as the computation of the period of limitation is concerned, as the cause of action arises only on the expiry of 15 days from the date of receipt of the demand notice issued under clause (b) of the proviso to Section 138 of the NI Act. Thus, it is held that the presumption of 'deemed service' should be drawn reckoning the date on which the sender of the notice was notified that the notice has not been served and hence the limitation for filing complaint should commence from the date of deemed service; namely, the date when the complainant received the returned postal cover or was so informed by the postal authority in case the postal cover was lost. 13. Coming to the facts of this case, here, the case advanced by the complainant is that he had issued demand notice on 15.11.2005, calling upon the drawer to discharge the liability within 15 days from the date of receipt of the notice. But, the said notice was refused by the accused and returned back to the complainant with endorsement dated 19.11.200....