TMI Blog2017 (7) TMI 578X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, in the said context, prosecutability of the private complaint has been objected by filing a preliminary objection by the trial Court which is rejected by the orders impugned, which were confirmed in revision. Section 27 of the General Clauses Act indicates expression “served”, “give” or “sent” while section 138 (c) of the N.I. Act indicates the giving of notice and accrual of a cause of action, if the amount is not paid within 15 days after receipt of the notice, therefore, for the purpose of Section 138, the Court ought to construe the word “give” as “receive”. It should not be construed as specified under the General Clauses Act “served”, “give” or “sent”. In view of the foregoing discussion in my considered opinion, the order passed by the trial court rejecting the preliminary objection filed by the petitioner, upheld by the revisional Court stands set aside. The preliminary objection filed by the petitioner is hereby upheld. Consequently, both the private complaints filed by the respondent are hereby quashed. - M.Cr.C.No.11770/2013, M.Cr.C.No.11772/2013 - - - Dated:- 19-6-2017 - Hon'ble Shri Justice J.K. Maheshwari Shri Priyank Awasthi, counsel for the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in case where the intimation was given by postal department in reference to the provisions as contained under Section 138 (b) which returned unclaimed then it would not be treated as the notice received by the drawer, therefore, the complaint cannot be prosecuted. The trial Court considering the date of issuance of giving the notice as relevant for reckoning the period of 15 days to prosecute private complaint rejected the said application and which is confirmed by the revisional Court without due consideration of the provision of law, however, both these orders may be set aside and complaint may also be dismissed treating it as premature. In the last, it is urged that if procedure as prescribed under Section 138(b) (c) has not been followed for commission of any offence, the private complaint is not prosecutable. 3. In support of the said contention reliance is placed on the judgment of the Apex Court in the case of Yogendra Pratap Singh vs. Savitri Pandey and another 2015(2) MPLJ 9 to contend that the date of committing an offence may be the date of dishonouring of the cheque but its prosecutability depend upon the expiry of the period contemplated under Section 138 (c) ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -up for determination is whether after dishonouring of the cheque and on issuing the notice by payee to the drawer for repayment of the amount of the cheque, if it is returned unclaimed then what would be the date of receipt of the said notice to count the period of 15 days as specified under Section 138 of the N.I. Act. 6. After hearing learned counsel appearing on behalf of both the parties and in the context of the facts, to advert the arguments as advanced, relevant provisions of Section 138 of N.I. Act is required to be reproduced, which is as follows 138. Dishonor of cheque for insufficiency, etc., of funds in the accounts Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honor the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such cheque fails to make payment of such amount to the payee within 15 days of receipt of such notice then he would be liable to be prosecuted for commission of the offence under Section 138 of the N.I. Act meaning thereby on dishonouring of the cheque, the offence has been committed but its prosecutability is based on three conditions as specified in Clause (a), (b) and (c) of proviso to Section 138. However, commission of the offence and its prosecutability are two distinct issues which is to be observed for the purpose of punishment as contemplated under the N.I. Act. 8. In the above context, undisputed facts of the present case are required to be seen. A loose cheque was given by the drawer to the payee which was dishonoured. Within a period of 30 days from the date of dishonouring, the notice was issued on 20.12.2007 to the drawer by post. The Post Office of the drawer s address gave first intimation on 24.12.2007 and when it remained unclaimed for seven days as per the noting dated 1.1.2008 pleaded in private complaint No.233/08 and on 3.1.2008 pleaded in private complaint No.234/08, it was returned to the payee. It is not in dispute that both the complaints were filed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned as unclaimed, such date would be the date of commencement or reckoning the period of 15 days. In the facts of the present case, as discussed hereinabove and the facts of the K. Bhaskaran s case (supra) are quite distinguishable, therefore, the arguments as advanced by the learned counsel for the complainant relying upon paragraph-24 of the said judgment cannot be countenanced and is hereby repelled. Now one of the aspect is further required to be dealt with which is contended relying upon the case of Agrawal Medical Agencies (supra) wherein issue of service of notice was considered in the context of the provisions of M.P. Accommodation Control Act and in the said case issue of presumption of service has been dealt with in the facts and situation of the case. If the provisions of Section 27 of General Clauses Act has been read in the context of provisions of Section 138 then there is some distinction which is to be drawn and kept in mind always by the Courts. Section 27 of the General Clauses Act indicates expression served , give or sent while section 138 (c) of the N.I. Act indicates the giving of notice and accrual of a cause of action, if the amount is not paid within 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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