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2021 (10) TMI 33 - HC - Indian LawsDishonor of cheque - pre-mature filing of complaint before expiry of the statutory period 15 days from the date of deemed service of the demand notice - insufficient fund or closure of the account prior to the deposit of the cheque - section 139 of N.I. Act - HELD THAT:- This Court is of the view that the presumption regarding service of demand notice sent even through registered cover can be drawn only upon expiry of 30 days from the date of dispatch of notice as has been held by the Hon'ble Supreme Court in SUBODH S. SALASKAR VERSUS. JAYPRAKASH M. SHAH & ANR [2008 (8) TMI 795 - SUPREME COURT]. In the said judgment the notice was sent through speed post and although the actual date of service of notice was not known, the Complainant proceeded on the basis that the same was served within the reasonable period. It was held that if the presumption of notice within the reasonable period is raised, the deemed service at best can be taken to be 30 days from the date of its issuance and the accused was required to make payment in terms of the said notice within 15 days thereafter and the complaint petition therefore could have been filed after expiry of 15 days given to the accused for payment of money after receipt of notice. This Court finds that the law has been well settled by the aforesaid judgment that the cause of action for filing a Complaint under Section 138 of the Negotiable Instruments Act cannot arise before expiry of 15 days from the date of service of notice upon the accused - this Court finds that in absence of the specific date regarding service of notice, the demand notice sent on 17.02.2006 under registered post would be deemed to be served upon the petitioner on 18.03.2006 i.e. only after expiry of 30 days from the date of issuance of the demand notice and the cause of action for filing the Complaint would have arisen on expiry of 15 days thereafter i.e. only after 02.04.2006 and the Complaint could have been filed thereafter, but the Complaint in the present case was filed on 17.03.2006. This Court is of the considered view that both the learned courts below have erred in holding that the Complaint was maintainable - this Court holds that the Complaint filed before expiry of the statutory period 15 days from the date of deemed service of the demand notice upon the petitioner regarding the dishonour of the cheques was premature in view of the fact that the cause of action for filing the Complaint had not arisen on 17.03.2006 and therefore, the Complaint itself was pre-matured and was not legally maintainable. The petitioner is acquitted on the ground that the complaint itself was pre-mature and consequently, he is discharged from the liability of his bail bond - the present criminal revision petition is hereby allowed.
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