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2019 (5) TMI 1912 - SC - Indian LawsDishonor of Cheque - second legal notice sent beyond a period of thirty days of the receipt of the memo of dishonour - delay occurred in the institution of the complaint only for the period after 6 April 2016 after the issuance of the second notice - section 138 of NI Act - HELD THAT:- In the present case, the facts indicate that the Appellant issued a legal notice on 31 December 2015. This was within a period of thirty days of the receipt of the memo of dishonour on 4 December 2015. Consequently, the requirement stipulated in proviso (b) to Section 138 was fulfilled. Proviso (c) spells out a requirement that the drawer of the cheque has failed to make payment to the holder in due course or payee within fifteen days of the receipt of the notice. The second Respondent does not as a matter of fact, admit that the legal notice dated 31 December 2015 was served on him. The Appellant has in the complaint specifically narrated the circumstance that despite repeated requests to the postal department, no acknowledgment of the notice was furnished - Cognizant as we are of the requirement specified in proviso (b) to Section 138, that the notice must be issued within thirty days of the receipt of the memo of dishonour, we have proceeded on the basis that it is the first notice dated 31 December 2015 which constitutes the cause of action for the complaint Under Section 138. The High Court has merely adverted to the presumption that the first notice would be deemed to have been served if it was dispatched in the ordinary course. Even if that presumption applies, we are of the view that sufficient cause was shown by the Appellant for condoning the delay in instituting the complaint taking the basis of the complaint as the issuance of the first legal notice dated 31 December 2015 - the impugned judgment of the High Court is unsustainable. Appeal allowed - decided in favor of appellant.
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