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2015 (7) TMI 1373 - HC - Indian LawsDishonor of cheque - time limitation - cheque was issued towards discharge of a legally enforceable debt or not. Time Limitation - what should be the date of 'receipt of the notice' in a case where there is a deemed service, in which the drawer has either refused or the notice is returned as unclaimed. Whether it would be the actual date of the refusal or the date on which the drawer has unclaimed the envelope or it would be the date of intimation of such refusal to the payee? - HELD THAT:- In the case of a service by post, the same shall be deemed to be effected by properly addressing, pre-paying and posting by registered post a letter containing the document and unless the contrary is proved, it will be deemed to have been effected at the time at which the letter would be delivered in the ordinary course of post - it would be the date on which the drawer has actually refused or has unclaimed the envelope, which will have to be reckoned as the date of deemed service and not the date on which the intimation of refusal is received by the payee. The provisions contained under Section 138 of the Act being penal in nature and moreso providing for a reverse onus, have to be strictly complied and when the Legislature has purposely used the term "from receipt of the notice", it would not be possible to read into it the date of receipt of the intimation of the refusal, as the relevant date (in a case of deemed service/refusal of the notice by the accused). That, in my humble view, would be, doing violence to the language, which is otherwise plain and explicit. I also find that the possible prejudice, if any or the disadvantage caused to the complainant on account of the delayed receipt of an intimation of refusal can be adequately taken care of by the provisions permitting condonation of delay in filing the complaint. This is not to suggest that in every case this would be a sufficient ground for condonation of delay - the learned Magistrate has rightly come to conclusion that the complaint was not filed within time as the date of refusal has to be reckoned as 24/05/2011 and the complaint is filed on 13/07/2011. The learned Magistrate has also noticed that there was no prayer for condonation of delay. Even in the appeal or arguments advanced at the bar, it was not urged that the delay, if any, may be condoned. The appellant all along claimed that the complaint is filed within time. Be that as it may, in the result, the point No. 1 is answered in the negative. Whether the cheque was passed in discharge of a legally enforceable debt or liability, would fall into insignificance as the finding on the point No. 2 one way or other would not change the ultimate result of dismissal of the complaint? - HELD THAT:- In a case, where the accused admits the signature on the cheque, a presumption arises under Section 139 of the Act in favour of the complainant. It is now well settled that while the prosecution is obliged to prove its case beyond reasonable doubt, the accused can prove his defence or rebut the presumption as is available to the complainant under Section 139 of the Act, on mere preponderance of probability - The presumption under Section 139 of the Act is a statutory presumption, which is evident from employment of the word 'shall'. Thus, the Court is obliged to raise such a presumption once the facts necessary for raising of such presumption are established. It is further well settled that for rebuttal of such presumption, it is not necessary as a rule that the accused shall enter into the witness box or should lead independent evidence. There were certain aspects about the envelope exhibit PW1/20 put to the witness, in which he has admitted that the word 'refused' on the envelope is cancelled and there is some scribbling there. He does not know as to who has done the said scribbling. He also admitted that the envelope was in torn condition. It was suggested to him that he has refused the legal notice, which was denied. He stated that he is not aware if the respondent is in the business of developing plots. On consideration of the evidence, it is found that non-production of the Income Tax Returns, particularly in the wake of the fact that the appellant had admitted that the amount is reflected in the same, would be sufficient to raise an adverse inference - The presumption stood rebutted - answered in the negative. Appeal dismissed - decided against appellant.
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