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2017 (7) TMI 578 - HC - Indian LawsDishonor of cheque - NI Act - whether after dishonouring of the cheque and on issuing the notice by payee to the drawer for repayment of the amount of the cheque, if it is returned unclaimed then what would be the date of receipt of the said notice to count the period of 15 days as specified under Section 138 of the N.I. Act? - Held that:- A loose cheque was given by the drawer to the payee which was dishonoured. Within a period of 30 days from the date of dishonouring, the notice was issued on 20.12.2007 to the drawer by post. The Post Office of the drawer’s address gave first intimation on 24.12.2007 and when it remained unclaimed for seven days as per the noting dated 1.1.2008 pleaded in private complaint No.233/08 and on 3.1.2008 pleaded in private complaint No.234/08, it was returned to the payee. It is not in dispute that both the complaints were filed on 14.1.2008, however, from the date it was shown to be unclaimed by the postal department i.e. 1.1.2008 and 3.1.2008 and the complaints have been filed prior to expiry of the 15 days of the said notice. However, in the said context, prosecutability of the private complaint has been objected by filing a preliminary objection by the trial Court which is rejected by the orders impugned, which were confirmed in revision. Section 27 of the General Clauses Act indicates expression “served”, “give” or “sent” while section 138 (c) of the N.I. Act indicates the giving of notice and accrual of a cause of action, if the amount is not paid within 15 days after receipt of the notice, therefore, for the purpose of Section 138, the Court ought to construe the word “give” as “receive”. It should not be construed as specified under the General Clauses Act “served”, “give” or “sent”. In view of the foregoing discussion in my considered opinion, the order passed by the trial court rejecting the preliminary objection filed by the petitioner, upheld by the revisional Court stands set aside. The preliminary objection filed by the petitioner is hereby upheld. Consequently, both the private complaints filed by the respondent are hereby quashed.
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