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2012 (3) TMI 646

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..... pleaded, the Petitioner could not have been vicariously held liable and thirdly the Court at Delhi has no territorial jurisdiction to try the complaint. 3. During the course of arguments, the scope of the present petition was confined only to the first ground that the legal notice for demand was not issued by the Complainant within 30 days of the knowledge of dishonor of the cheque. 4. Learned counsel for the Petitioner contends that as per the complaint and the affidavit of the Complainant/Respondent No.2, it has been alleged that the Complainant was shocked to know when his bankers returned three cheques unpaid on 10th July, 2010 as bounced with the remarks insufficient funds in the bank account of the Petitioner and two cheques bounced due to exceed arrangement. According to the Petitioner, it is the admitted case of Respondent No. 2/Complainant that the legal notice was sent through the counsel on 10th August, 2010 and the Petitioner has failed to make the outstanding payment to Respondent No. 2 even after being served with the legal notice. Reference is made to the complaint, legal notice dated 7 th August, 2010 and the affidavit of Respondent No.2 annexed to the compl .....

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..... ent to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for [ a term which may extend to two year ], 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 induce course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer, of the cheque, [ within thirty days ] of the receipt of information by him from the bank regarding the return of the cheques as unpaid, and (c) The drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said n .....

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..... hereof are complied with. Clauses (a), (b) and (c) of the proviso, therefore, lay down conditions precedent for applicability of the main provision. Section 138 of the Act being penal in nature, indisputably, warrants strict construction. 9. In Harman Electronics (P) Ltd. v. National Panasonic India (P) Ltd., [2008 (16) SCALE 317] this Court held: 8. ... The proviso appended thereto imposes certain conditions before a complaint petition can be entertained. 9. Reliance has been placed by both the learned Additional Sessions Judge as also the High Court on a decision of this Court in K. Bhaskaran v. Sankaran Vaidhyan Balan, (1999) 7 SCC 510. This Court opined that the offence under Section 138 of the Act can be completed only with the concatenation of a number of acts, namely, (1) drawing of the cheque, (2) presentation of the cheque to the bank, (3) returning the cheque unpaid by the drawee bank, (4) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (5) failure of the drawer to make payment within 15 days of the receipt of the notice. It was opined that if five different acts were done in five different localities, any one o .....

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..... of clause (b) of the proviso appended to Section 138 of the Act has to be considered. 10. We may, however, at the outset notice that both clauses (a) and (b) of the proviso appended to Section 138 of the Act employed the term within a period . Whereas clause (a) refers to presentation of the cheque to the bank within a period of six months from the date on which it is drawn, clause (b) provides for issuance of notice to the drawer of the cheque, within thirty days of the receipt of information . The words within thirty days of the receipt of information are significant. Indisputably, intimation was received by the respondent from the bank on 3-12-2003. 11. Parliament advisedly did not use the words from the date of receipt of information in Section 138 of the Act. It is also of some significance to notice that in terms of Section 9 of the General Clauses Act, 1897, whereupon reliance has been placed by the High Court, the statute is required to use the word from and for the purpose of including the last in a series of days or any other period of time, to use the word to . The departure made from the provisions of Section 9 of the General Clauses Act by Parli .....

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