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2021 (11) TMI 726 - HC - Indian LawsDishonor of Cheque - statutory period prescribed under the provisions of Section 138 of the Negotiable Instruments Act, 1881 not satisfied - legally enforceable debt or not - presumptions regarding existing debt or not - whether on the date of filing of the complaint case under Section 138 of the Negotiable Instruments Act, 1881, the cause of action had crystalized or the complainant itself was pre-mature? HELD THAT:- This Court finds that admittedly, there is no evidence of service of the legal notice to the petitioner and accordingly, the learned courts below has considered deemed service of notice by referring to the General Clauses Act. This Court is of the considered view that presumption regarding service of notice sent 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 judgement that the cause of action for filing a Complaint case under Section 138 of the N.I. Act could not arise prior to expiry of 15 days from the date of service of the legal notice on the accused - this Court also finds that even if the best case of the Complainant is taken into consideration, then the date of dispatch of the legal notice regarding bouncing of the cheque by the complainant is 19.11.2009 (through registered cover), the date of deemed service of legal notice upon the petitioner would be 18.12.2009 (30 days from dispatch of legal notice) and 15 days from the date of service of notice would expire only on or about 02.01.2010 and present complaint case has been filed on 22.12.2009 i.e. on the 4th day from the deemed service of notice, if taken as 18.12.2009. The condition precedent for filing the case under Section 138 of the Negotiable Instruments Act, 1881, having not been satisfied, the Complaint itself was not maintainable on the day it was filed and accordingly, the petitioner could not have been convicted under the said Section. The question of any presumption regarding existing debt under Section 139 of the Negotiable Instruments Act, 1881 also could not arise as the Complaint itself was not maintainable - petitioner is acquitted from the charge thereunder and is discharged from the liability of the bail bonds. Petition allowed.
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