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N Paraeswaran Unni Versus G Kannan And Another

2017 (3) TMI 1340 - SUPREME COURT OF INDIA

Conviction u/s 138 of the Negotiable Instruments Act - dishonoured cheques - undelivered notice - It was contended that:- Notice demanding payment of the amount arising from the two dishonoured cheques in question was on 04-05-1991, whereas the intimation regarding dishonour of the said cheques was given by the appellant’s bank on 08-04-1991. Therefore, the notice was beyond 15 days. - Held that:- generally there is no bar under the N.I. Act to send a reminder notice to the drawer of the cheque .....

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the stipulated time contemplated under Clause (b) of Section 142 of the N.I. Act, therefore Section 138 r/w 142 of N.I. Act is attracted. In the view of the matter, we set aside the impugned judgment of the High Court. - However, during the course of hearing, learned counsel for first respondent, as agreed by appellant herein, submitted that first respondent was willing to pay ₹ 2,00,000/- (Rupees two lakhs only) in lieu of suffering simple imprisonment of three months as imposed by t .....

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sation.In the event, first respondent fails to deposit the said amount of ₹ 2,00,000/- within the stipulated period as indicated above, the conviction and sentence of three months awarded by the Ld. Trial Court and affirmed by the Appellate Court shall stand restored and bail granted to the first respondent shall stand cancelled. - Criminal Appeal No 455 of 2006 - Dated:- 1-3-2017 - Mr. N.V. Ramana And Mr. Prafulla C. Pant JJ. For the Appellant : Mr. M. Gireesh Kumar, Adv., Mr. Sriram P., .....

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l Court and Appellate Court, that first respondent cannot be convicted under Section 138 of the Negotiable Instruments Act, 1881 (in short N.I. Act ) as the procedure prescribed under this section was not satisfied in the instant case. 2. Brief facts leading to this criminal appeal, as per the prosecution case, are that the first respondent/accused borrowed ₹ 64,000/- on 13-10-1990 from the appellant/complainant. In lieu of the borrowed amount, first respondent issued two cheques dated 13- .....

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bank returned the said two cheques on 05-04-1991 with an endorsement Refer to drawer. Appellant received intimation memo dated 05-04-1991 from his bank on 08-04-1991. 4. Appellant got issued a legal notice on 12-04-1991 to the first respondent, which was returned with postal endorsement intimation served, addressee absent on 20-04-1991. The same was received by the appellant s advocate on 25-04-1991. Appellant again sent the legal notice on 04-05-1991. The second notice sent to first respondent .....

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Section 138 of the N.I. Act, which was numbered as Summary Trial No. 34/92. After a full fledged trial and upon appreciating the documentary evidence adduced on behalf of the parties, the Trial Court allowed the complaint as the appellant was successful in proving, the case beyond reasonable doubt that first respondent committed an offence punishable under Section 138 of the N.I. Act. Accordingly, the Trial Court by judgment dated 29-07-1993 convicted and sentenced the first respondent to under .....

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ised before the High Court was that the provisions of Section 138 of the N.I. Act cannot be invoked as the appellant had not complied with the conditions in Clause (b) of the proviso to the said section. Notice demanding payment of the amount arising from the two dishonoured cheques in question was on 04-05-1991, whereas the intimation regarding dishonour of the said cheques was given by the appellant s bank on 08-04-1991. Therefore, the notice was beyond 15 days. Hence, in such circumstances Se .....

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Court was right in rejecting the case of the appellant herein on the ground that second notice was issued beyond the period of limitation i.e. 15 days from the date of receiving dishonour intimation from the bank under Clause (b) of the proviso to Section 138 of the N.I. Act. 10. Before delving into the issue, it would be appropriate to reproduce Section 138 of the Act, as it then stood. 138. Dishonour of cheque for insufficiency, etc., of funds in the account: Where any cheque drawn by a person .....

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ence and shall, without prejudice. to any other provision of this Act, be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) the cheque has been, presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due cou .....

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planation.-For the purposes of this section, debt or other liability means a legally enforceable debt or other liability. 11. A bare reading of Section 138 of the N.I. Act, indicates that the purport of Section 138 is to prevent and punish the dishonest drawers of cheques who evade and avoid their liability. As explained in Clause (b) of the proviso, the payee or the holder of the cheque in due course is necessarily required to serve a written notice on the drawer of the cheque within fifteen da .....

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e drawer shall be deemed to have committed an offence under the Act and thereafter the drawee would be competent to file complaint against the drawer by following the procedure prescribed under Section 142 of the Act. 13. It is clear from Section 27 of the General Clauses Act, 1897 and Section 114 of the Indian Evidence Act, 1972, that once notice is sent by registered post by correctly addressing to the drawer of the cheque, the service of notice is deemed to have been effected. Then requiremen .....

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te the object of the Legislature. If an expression is susceptible of a narrow or technical meaning, as well as a popular meaning, the Court would be justified in assuming that the Legislature used the expression in the sense which would carry out its object and reject that which renders the exercise of its power invalid" (M/S New India Sugar Mills Ltd. v. Commissioner of Sales Tax, AIR 1963 SC 1207) 15. This Court in catena of cases has held that when a notice is sent by registered post and .....

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re is no bar under the N.I. Act to send a reminder notice to the drawer of the cheque and usually such notice cannot be construed as an admission of non-service of the first notice by the appellant as has happened in this case. 16. Moreover the first notice sent by appellant on 12-04-1991 was effective and notice was deemed to have been served on the first respondent. Further, it is clear that the second notice has no relevance at all in this case at hand. Second notice could be construed as a r .....

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