TMI Blog2020 (5) TMI 311X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of the Hon'ble Apex Court; the denial of the applicant that the cheque has not been issued by him and his cheque was lost and in respect of which Bank has also been informed; that the complaint is pre mature, the mandatory requirement of service of notice is lacking; the complaint was filed pre mature are all disputed questions of fact, which can only be gone into during the course of trial. The complaint was filed along with the oral and documentary evidence, which have already been referred to in the preceding paragraph, prima facie constitutes offence against the applicant. The cheque dated 29.1.2007 of ₹ 10,00,000/- given by the applicant was deposited by the complainant on 31.1.2007 in his bank at Canara Bank, Roorki Road, Muzaffar Nagar, which was returned by the bank with the endorsement of insufficient fund on 9.2.2007 along with memo dated 14.2.2007, which was received by the complainant on 26.2.2007, hence a notice was given with respect to the dishonour of cheque by the complainant through registered post on 9.3.2007, which was received at the address of the applicant and even after expiry of 15 days when the required amount mentioned in the cheque was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17.4.2000. The partnership business was in the name and style of Priyanka Aryan Constructions . In 2002 due to ill intention the applicant started cheating to defraud the opposite party no. 2 and hence the complainant filed a case No. 6 of 2003 before the court of Civil Judge (Senior Division), Thane, Mumbai. After filing of the suit the applicant persuaded the complainant to enter into outside the court settlement whereby the applicant agreed to pay ₹ 45,00,000/- in terms of compromise. The applicant issued two cheques one of ₹ 10,000,00/- dated 29.1.2007 bearing cheque no. 299853 and another cheque of ₹ 35,000,00/- dated 6.2.2007 bearing cheque no. 29960 of Abhuday Cooperative Bank Ltd. Branch Vashi, Navi Mumbai and was assuring that it will be encashed. When the opposite party no. 2 deposited the aforesaid cheque of ₹ 10,000,00/- dated 29.1.2007 in his local account at Canara Bank, Roorki Road, Muzaffar Nagar on 3.1.2007, the said cheque was returned on 9.2.2007 by the Bank with the endorsement of insufficient of fund , it was returned without any payment along with bank memo of Canara Bank dated 14.2.2007, which was received by the opposite p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f action will accrue to the complainant to file a complaint under Section 138 of Negotiable Instrument Act on 26.4.2007. The complaint has been filed by the opposite party no. 2 is pre mature as according to the Sub Clause 2 of Section 138 of Negotiable Instrument Act the period of 15 days begins to run on the day next to the day of the service of notice while in the present case the period of 15 days will start from 18.4.2007 and will complete on 2.5.2007, as such the complaint filed on 26.4.2007 is pre mature. The complaint has been filed pre mature flouting the mandatory provisions of the Act the entire proceeding is vitiated in law. Lastly, it has been contended that the cheque was never issued by the applicant at any point of time in the name of the opposite party no. 2 and when the applicant came to know about the presentation of the stolen cheques the applicant had lodged a complaint in the office of Commissioner of Police, C.B.D. Navi Mumbai on 26.2.2007 and also intimated the same to the bank. The said cheques do not bear the signature of the applicant. The signatures on the cheque were forged by the opposite party no. 2. Moreover, there was no enforceable liability due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the requirement of law. It was held that no presumption can be raised in regard to the service of notice, which has not been effected in terms of the Statue on that count the appeal was allowed and the proceeding was quashed. In Rahisuddin Saifi Vs. State of U.P. and another in Criminal Misc. Application 482 No. 33953 of 2013, in that case the disputed cheque was not encashed as the account holder i.e. the applicant has stopped payment is the contingency, which is not contemplated under Section 138 of the Act, therefore, criminal proceeding initiated by the opposite party no.2 in that case was quashed by the Hon'ble Court vide order dated 22.1.2020. To sum up his argument the learned counsel for the applicant has again submitted that the alleged legal notice dated 9.3.2007 was served upon the applicant on 17.4.2007 and reply to the notice whatsoever dated 26.3.2007 was never given by the applicant and only to fill up the lacuna the opposite party no. 2 has managed the fabricated paper to bring on record that earlier a notice was sent to the applicant just only in order to show that the complaint has not been filed pre mature, hence order taking cognizance against the appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellate court. To substantiate the argument the learned counsel for the opposite party no. 2 has placed reliance on plethora of judgement, which are delineated herein under; In C.C. Alavi Haji Vs. Palapetty Muhammed and another, 2007 (6) SCC 555, it has been held that it is not necessary to make averment in the complaint that the service of notice was evaded by the accused or that the accused had role to play for the return of the notice un-served. The requirement of issuing notice in terms of Section 138 proviso (b) stands complied with when the notice is sent in the manner by registered post by correctly addressing the drawer of the cheque. The notice was issued to the applicant, which was sent to his address by registered post with acknowledgement due. The complaint cannot be rejected on the ground of no proper service of notice. The contrary argument of the counsel for the applicant is not tenable that the notice was never received by the applicant rather it would draw a presumption that the applicant is avoiding to escape from legal consequence of Section 138 of the Act. Absence of averment in the complaint about service of notice upon accused also would not be p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... returned by a bank with endorsement like (I) refer to drawer (ii) exceeds arrangements and (iii) instruction for stop payment and like other usual endorsement, it amounts to dishonour within the meaning of Section 138 of the Act. Therefore, even after issuance of notice if the payee or holder does not make the payment within the stipulated period, the statutory presumption would be of dishonest intention exposing to criminal liability . Similarly in Laxmi Dyechem Vs. State of Gujarat and others, (2012) 13 SCC 375 has elaborately dealt with respect to the contingencies required to constitute of an offence under Section 138 of the Act in respect of dishonour of cheque. The first contingency either because of the amount of money standing to the credit of that account is insufficient to honour the cheque is a genus and dishonour for reasons such as account closed , payment stopped , referred to the drawer the signatures do not match or image is not found are only species of that genus. The liability to pay the amount when the registered notice was sent and acknowledged by the applicant, the applicant cannot be absolved. It has been held in the aforesaid case that the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s filed pre mature are all disputed questions of fact, which can only be gone into during the course of trial. The complaint was filed along with the oral and documentary evidence, which have already been referred to in the preceding paragraph, prima facie constitutes offence against the applicant. While returning the cheque it has been clearly endorsed by the bank insufficient fund also comes within the definition of Section 138 of the Act and on this count alone it can be said that the applicant had issued the cheque knowingly to defeat the claim of the complainant when the applicant's account was insufficient to honour the cheque, the endorsement of 'insufficient of fund' itself shows that the bank was prevented to honour the cheque whether it was with respect to debt or liability for discharge, will only be examined by the trial court. In view of the statutory presumption, which is rebuttal presumption under Section 139 of the Act by the drawee of the cheque. The language used in Section 138 of the Act is based upon five components, namely; (1) Drawing the cheque; (2) Presentation of the cheque to the Bank; (3) Returning of the cheque unpaid by the dra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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