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2020 (7) TMI 165 - HC - Indian LawsDishonor of Cheque - allegation that the condition precedent for filing of the case under Section 138 of the Negotiable Instruments Act, 1881 was itself not satisfied - HELD THAT:- The learned appellate court erred in law in ignoring the mandatory time frame prescribed under section 138 of aforesaid Act of 1881 and held that the complaint case filed after 10 days of issuance of notice of bouncing of cheque was not fatal to the case on the ground that the purpose for issuance of notice has been fulfilled as the accused Anil Chandra had got knowledge about the dishonour of the cheque much before the filing of the complainant case and had not made payment of the cheque and that the accused had the opportunity to make payment in Court within fifteen days of receiving of Court's notice, if he was honest towards his cheque. This court finds that in the present case the notice regarding bouncing of cheque prior to filing of the case has not been exhibited and what has been exhibited is only a postal slip dated 02.05.2006 and the complaint case was filed on 12.05.2006 i.e. prior to expiry of 15 days from the alleged date of dispatch of notice regarding cheque bouncing - neither the notice dated 02.05.2006 has been exhibited nor the case has been filed after expiry of the stipulated time frame as per the said Act of 1881. Rather one legal notice dated 19.05.2006 and its postal receipt issued after filing of the complaint case has been exhibited. The aforesaid aspect of the matter has not been properly considered by the learned courts below and both the courts have erred in holding the petitioner guilty of offence under section 138 of the aforesaid Act of 1881 by resorting to the presumptions under section 139 of the Act of 1881 although the complaint itself was not maintainable on the day it was filed. The complaint was not maintainable on the day it was filed, the impugned judgements of conviction and sentence are set-aside - Petition allowed.
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