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2021 (3) TMI 597 - HC - Indian LawsDishonor of Cheque - insufficient funds - Section 138 of the Negotiable Instruments Act - service of notice - rebuttal of presumption - HELD THAT:- This Court finds that both the learned courts below have failed to consider that there is no evidence available on the records of the case which suggests that the legal notice dated 29.02.2008 sent under registered cover was ever served upon the petitioner. The learned courts below have proceeded on the premise that the accused is also belonging from Distt. Hazaribag, so it may be presumed that the said notice was received by the accused till 2 March, 2008 i.e. on the third day when counted from the date of issuance of notice. This Court is of the considered view that the date of service of notice of cheque bouncing is a material date for the purposes of calculation of time line giving a cause of action for filing a Complaint under Section 138 of the Negotiable Instruments Act, 1881 and it is for the Complainant to prove that the cause of action arose as per the provisions under the proviso (c) to Section 138 of Negotiable Instruments Act, 1881 which clearly provides that the cause of action arises upon expiry of 15 days from the date of receipt of the cheque bouncing notice - In absence of the specific date regarding service of cheque bouncing notice, the finding of the learned trial court on the basis of presumption that the legal notice dated 29.02.2008 was received by the accused-petitioner till 2 March, 2008 is perverse and cannot be sustained in the eyes of law. This Court is of the considered view that both the learned courts below have erred in holding that the notice dated 29.02.2008 was presumed to have been served by 02.03.2008 and accordingly the Complaint was maintainable on 18.03.2008. Accordingly, this Court holds that the Complaint filed before expiry of the statutory period 15 days from the date of deemed service of the demand notice upon the petitioner regarding the dishonour of the cheque was premature in view of the fact that the cause of action for filing the Complaint had not arisen on 18.03.2008 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 - present criminal revision petition is hereby allowed.
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