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2018 (8) TMI 1295 - HC - Indian LawsDishonor of cheque - Whether in a case where, the drawer of the cheque denies the liability and refuses to pay the cheque amount and issues a reply notice categorically making his stand clear to that effect, even then, should the payee wait for the expiry of 15 days and only thereafter file a complaint as provided in proviso (c) to Section 138 of the Negotiable Instruments Act? Held that:- The scheme of giving opportunity to the drawer of the cheque is to pay the cheque amount before permitting his prosecution, no matter whether offence is complete, is unique to Section 138 of the Act. It gives chance even to the dishonest drawer to make, amend and escape prosecution - When the notice is given by the complainant demanding payment, the accused must make payment within a period of 15 days of the receipt of such notice. The words ‘the drawer of such cheque fails to make the payment’ are ostensibly different from saying ‘the drawer refuses to make payment’. The legislature has thoughtfully used the word ‘fails’ instead of other expressions, as failure can be due to variety of reasons including disability to pay. Therefore, the offence would be complete, when the drawer ‘fails’ to make payment within the stipulated time, whatever be the cause for such failure. In view of conflicting decisions of two learned single Judges of this Court on the same issue and in view of the importance of resolving the important question of law that has arisen for consideration, this Court deems it fit to place the matter before a Division Bench in order to resolve the conflict and to come out with an authoritative pronouncement - this Court directs the Registry to place this matter before the Hon’ble Administrative Judge, so as to enable the Hon’ble Administrative Judge to consider constituting a Bench in order to hear the issue and to resolve the conflict and make an authoritative pronouncement on the issue.
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