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2022 (10) TMI 729 - HC - Indian LawsDishonor of Cheque - Period of limitation for giving notice of demand - cognizance of the offence under Section 138 of the Negotiable Instruments Act, 1881 was declined and the complaint was held to be not maintainable - HELD THAT:- For an offence under Section 138 of the said Act, one of the essential requirements, as per Clause (b) of proviso to Section 138 is that payee/holder in due course of the dishonoured cheque should have made a demand for the payment of the said amount of money (cheque amount) by giving a notice in writing to the drawer of the cheque within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. Admittedly, in the present case, the return of the cheque was vide memo dated 17.03.2020 and as such, the notice was required to be given within 30 days of 17.03.2020. Further, the notice was issued only on 20.10.2020. The order was for the benefit of the complainants, who had to institute the complaints. There was no embargo from instituting the complaints in case no such benefit of exclusion of limitation period was sought on behalf of the complainant, in case the proceedings were initiated within the period prescribed under proviso of Section 138 of the NI Act - A gross injustice shall be incurred to the complainant/petitioner in case he is denied to exclude the period during 17.03.2020 till 20.10.2020 for the purpose of issuing of notice from the date of return memo i.e. 17.03.2020 till the date of issuance of notice i.e. 20.10.2020. The order passed by the learned Trial Court declining to take cognizance in the proceedings initiated before Trial Court under Section 138 of the Negotiable Instruments Act appears to be erroneous - appeal allowed.
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