TMI Blog2012 (10) TMI 1258X X X X Extracts X X X X X X X X Extracts X X X X ..... strate, Agartala, West Tripura, on 03.01.2006, alleging inter alia that the accused is his full-blood brother and the accused is the proprietor of M/s. S.S. Electronics situated at 153 H.G.B. Road, Agartala and deals with the business of electronics goods such as TV, Fridge, Fan etc. The accused approached the complainant to provide him a loan of ₹ 1,00,000/-(Rupees one lakh) for his business purpose in the month of August, 2003 with an assurance that he will repay the amount within 2(two) years. Since the accused is a full-blood brother, the complainant agreed and accordingly an amount of Rupees one lakh was advanced to the accused. The accused issued a cheque of Rupees one lakh in favour of the complainant vide Cheque No. 3389013 drawn on Punjab Sind Bank assuring repayment. According to the complainant, the cheque was drawn on 02.09.2005. The accused requested the complainant not to deposit the Cheque, at once and therefore, the complainant was waiting till 25.11.2005 as per request made by the accused. On 26.11.2005, the complainant demanded the amount but the accused refused to make payment. Thereafter, the complainant deposited the cheque, in his bank account on 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted the offence when the cheque was dishonoured. The notice is intended only to give a chance to the accused to make payment of the amount within a time frame so that the accused can escape from the punishment stipulated under the NI Act. The accused, even after institution of the case did not make payment of the amount and therefore, intention of the accused is clear that he has taken a false plea that the notice was not received by him. In the circumstances, the accused is liable to be punished as prescribed under Section 138 of N.I. Act. 5. I have meticulously gone through the complaint and the evidence on record. Except denial there is nothing in the cross-examination of PW. 1 regarding the alleged advance of Rupees one lakh to the accused by the complainant and issuance of the cheque by the accused assuring repayment of the amount Section 138 has been incorporated to protect the holder of a negotiable instruments in due course. If a cheque is issued and the payee presented the cheque for encashment and it is dishonoured for not having the adequate amount in the account of the drawer of the cheque and he is informed by a notice by the payee and if it is found that still the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of his brother and he has asserted that his brother received it by putting his initial. The accused adduced no evidence to discard the cogent evidence by the complainant The accused even did not specifically deny the initial and date in Exbt. 4, in the block meant for the consignee with the heading Received by consignee in good condition , as not of him. 8. Section 94 of the N.I. Act prescribes the very mode of giving notice which reads thus: 94. Mode in which notice may be given-Notice of dishonour may be given to a duly authorized agent of the person to whom it is required to be given, or, where he has died, to his legal representative, or, where he has been declared an insolvent, to his assignee; may be oral or written; may, if written, be sent by post; and may be in any form; but it must inform the party to whom it is given, either in express terms or by reasonable intendment that the instrument has been dishonoured, and in what way, and that he will be held liable thereon; and it must be given within a reasonable time after dishonour, at the place of business or (in case such party has no place of business) at the residence of the party for whom it is intended. If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the person who has the statutory obligation to give notice because he is presumed to be the loser in the transaction and it is for his interest the very provision is made by the legislature. The words in Clause (b) of the proviso to Section 138 of the Act show that payee has the statutory obligation to make a demand by giving notice. The thrust in the clause is on the need to make a demand . It is only the mode for making such demand which the legislature has prescribed. A payee can send the notice for doing his part for giving the notice. Once it is despatched his part is over and the next depends on what the sender does. 22. It is well settled that a notice refused to be accepted by the addressee can be presumed to have been served on him, [vide Harcharan Singh v. Smt. Shivrani and Ors. (1981) 2 SCC 535, and Jagdish Singh v. Natthu Singh (1992) 1 SCC 647: AIR (1992) SCW 1747: AIR (1992) SC 1604). 23. Here the notice is returned as unclaimed and not as refused. Will there be any significant different between the two so far as the presumption of service is concerned? In this connection a reference to Section 27 of the General Clauses Act will be useful. The Section r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving , the travails of the prosecution would have been very much lessened. But the Legislature say that failure on the part of the drawer to pay amount should have been within 15 days of of the receipt of the said notice. It is, therefore, clear that giving notice in the context is not the 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 correct address. Once it is dispatched his part is over and the next depends on what sendee does. In the case of M/s. Indo Automobiles Vs. Jai Durga Enterprises Ors. reported in AIR 2009 SC 386 the Apex Court has reiterated the same view and held thus; Admittedly, notice under S. 138-B of the Negotiable Instruments Act was sent to the respondents through registered post and under a certificate of posting on the correct address of the respondents. The High Court had quashed proceeding on the ground that although notice through registered post and also under certificate of posting were sent by the appellant/complainant to the respondents but because of the endorsement of the postal peon, the service could not be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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