TMI Blog2006 (7) TMI 739X X X X Extracts X X X X X X X X Extracts X X X X ..... e was acquitted. 2. Facts in the background of the case are that the complainant Haryana State Small Industries and Export Corporation (hereinafter referred to as 'the complainant') was dealing in supply of iron and steel to small scale industries. The respondent was also one of its dealers. On 27.2.1994. the respondent purchased material for a sum of Rs. 29,66,721/- against bill No. 10672 dated 27.2.1994. Out of the aforesaid amount, the respondent paid a sum of Rs. 9,45,200/- against the current cheque dated 28.2.1994 and for the balance amount a post-dated cheque No. 765504 dated 23.3.1994 for a sum of Rs. 20,21,521/- was issued. On 23.3.1994, when the complainant presented the said cheque for encashment with its Bankers, then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hands to appreciate the real position, we need to reproduced some relevant dates. The cheque No. 765504 is dated 23.3.1994. It was tendered for payment on the due date which was dishonoured. A letter was issued by the complainant on 7.4.1994. then there is evidence that the respondent personally requested the complainant to present the cheque again on 19.4.1994. However, despite the cheque was presented on 19.4.1994, Jammu Kashmir Bank Limited. Naraina, New Delhi informed vide letter dated 21.4.1994 that the cheque was dishonoured for want of insufficient funds. The complainant issued notice to the respondent on 29.4.1994. Consequently, the complainant preferred this complaint within time from 19.4.1994 i.e. on 2.6.1994. 7. Section 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such cheque fails to make the payment of the said amount of money to the payee or as the case may be. to the holder in due course of the cheque within fifteen days of the receipt of the said notice. Explanation.-For the purpose of this section, debt or other liability means a legally enforceable debt or other liability. 8. On bare reading of provision of Section 138(b) and (c) of the Negotiable Instruments Act, it comes out that to constitute an offence under Section 138 of the Negotiable Instruments Act, the complainant is obliged to prove its ingredients which include the receipt of notice by the accused under Clause (b) of Section 138 of the Act. It is not the giving of notice which makes offence but it is the receipt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause of action. For example: (i) if the envelope addressed to the complainant is lost or damaged or destroyed in transit; (ii) the letter does not reach the respondent for want of correct address; (iii) the letter so posted is not received by the respondent is short of notice and it is blank; (iv) the letter so posted is not received by the actual addressee and the postage is stolen in transit; and (v) as assured and promised by the respondent, the cheque has been tendered for the second time. 10. Thus, as per provisions of Section 138(b) of the Negotiable Instruments Act cause of action arises on the receipt of the notice under Section 138(b) of the Negotiable Instruments Act but on failure of receipt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while allowing the appeal, observed in para Nos. 10 and 11 of the judgment as under: 10. The High Court fell in error by not referring to the letter of the respondents dated 20th June, 1998 and quashing the proceedings merely by reading a line from para 6 of the complaint. The appellant in para 7 of their complaint had specifically stated that Even though the complainant is not admitting the said allegation, on abundant caution the complainant presented the cheque again on 1.7.1998 to the drawee Bank through the complainants' Bankers, Punjab National Bank. The cheque was again dishonoured by the drawee Bank on 2.7.1998 a registered lawyer notice was issued to the 1st accused firm as well as to the 2nd accused intimating the dish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evant part of statement of the respondent) reads as under: Q-3. That on 23.3.1994. the cheque was presented in the bunk, but the same was returned by the Bank of the accused firm on account of insufficient funds. In this regard, a notice was sent on 7.4.1994. Thereafter on the assurance given by the accused firm, the cheque was presented on 19.4.1994. But the said cheque was returned on both occasions on account of insufficient funds. What you have to say in this regard? Ans. It is incorrect. The complaint is time-barred. 13. As such, in this case also, the respondent has not come to the Court with clean hands and is playing hide and seek. On one hand it is stating that the notice of dishonour of the cheque has not been rec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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