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2021 (1) TMI 661 - HC - Indian LawsDishonor of Cheque - service of notice - Refusal of notice - endorsement of refusal by the postal peon was dated 10.04.07 while notice refused on 2.4.07 - case of petitioner is is that the Complaint itself was premature and not maintainable, inasmuch as, the statutory period for filing the Complaint under Section 138 of the Negotiable Instruments Act, 1881 had not expired - HELD THAT:- This court finds that there is nothing on record, neither documentary or oral evidence, as to what happened on 02.04.2007 when the postal peon went to deliver the notice and as to whether he met the accused and whether on the same day the accused refused to accept the notice. Admittedly, the postal peon has not been examined as a witness and the postal envelope has a specific endorsement of refusal with a date as 10.04.2007. Thus, finding of the learned lower appellate court that the date of refusal is to be taken as 02.04.2007 is based on no evidence and perverse and is accordingly set-aside. The finding of the learned trial court that the date of service of notice is the date of endorsement of refusal 10.04.2007 is well reasoned order on the point of date of refusal of notice. Accordingly, the finding of the learned lower appellate court that the date of refusal of the notice was 2.4.07 is perverse and is set-aside and it is held that the date of refusal of the notice by the accused is 10.04.2007 and not 02.04.2007. If the date of refusal of notice is held to be 10.04.2007 and not 02.04.2007 then, Whether the Complaint filed on 17.04.2007 was premature due non-fulfillment of condition prescribed under Clause (c) of the proviso to Section 138 of the Negotiable Instruments Act, 1881 and therefore, the Complaint was not legally maintainable? - HELD THAT:- This Court is of the considered view that in the case of refusal to receive the demand notice also, the cause of action to file the Complaint would not arise unless the statutory period of 15 days from the date of refusal to receive the demand notice has expired - This Court finds that the learned trial court has held the Complaint maintainable on the basis that after refusal to receive the legal notice on 10.04.2007, the Complaint was filed on 17.04.2007, but summon was issued against the petitioner on 12.09.2007 which is much after the lapse of 15 days. This Court is of the considered view that learned courts below have erred in holding that the Complaint was maintainable. Accordingly, this Court holds that the Complaint filed before expiry of the statutory period 15 days from the date of refusal to receive the legal/demand notice 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 17.04.2007 and therefore, the Complaint itself was not legally maintainable. The petitioner is acquitted from the accusation thereunder and he is discharged from the liability of his bail bond - Revision petition allowed.
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