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TMI Blog2020 (7) TMI 418X X X X Extracts X X X X X X X X Extracts X X X X ..... issued the cheque bearing No. 953920 dated 1-10-2009 drawn on Canara Bank, Dharwad for Rs. 50,000/- towards repayment of the loan amount. When the said cheque was presented for encashment, the same was dishonoured with an endorsement that there was "insufficient funds" in the account of the drawer. The same was intimated to the complainant through his Banker on the same day. The complainant issued legal notice to the accused on 27-10-2009, informing him regarding the dishonour of the cheque and calling upon him to repay the cheque amount. The said legal notice was served on the accused on the very next day i.e. 28-10-2009, but the same was not within the knowledge of the complainant, as he had not received the postal acknowledgement. The complainant made efforts to get the information from the postal authorities and only on 4-1-2010 he came to know that the legal notice was already served on the addressee on 28-10-2009 itself. 4. It is contended that the accused deliberately issued the cheque without maintaining the required balance in his account and he had also not repaid the cheque amount after receipt of the legal notice and thereby he has committed the offence punishable unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rival contentions of the parties, proceeded to pass the impugned order dated 11-1-2011, dismissing I.A.No.1 filed under section 141 of the Act and consequently the complaint is also dismissed. 9. Aggrieved by the said order passed by the trial Court, the complainant has preferred this appeal on the following grounds. 10. The impugned order passed by the trial Court is illegal, perverse and the same is liable to be set aside. The reasons given by the trial Court is not just and proper. The trial Court has not properly considered the reasons assigned for condonation of delay. The trial Court should have accepted the reasons assigned and should have condoned the delay in filing the complaint. Therefore he prayed for allowing the appeal and also I.A. No.1, filed before the trial Court by condoning the delay in filing the complaint and to direct the trial Court to take cognizance of the complaint. 11. The learned advocate for the appellant contended that even though the legal notice as required under section 138 of the Act, was issued by the complainant on 27-10-2009, calling upon the accused to pay the cheque amount, he had not received postal acknowledgement and therefore was not i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plainant had issued legal notice notifying the accused about the dishonour of the cheque on 27-10-2009, complainant filed complaint before the postal authorities seeking information about service of notice on the accused and the postal authorities issued the endorsement on 4-1-2020 to the complainant informing about service of notice on the accused on 28-10-2009, are not in serious dispute. Further the materials placed before the Court prima facie supports the contention of the complainant and it is sufficient to decide the application I.A.No.1 filed by the complainant before the trial Court. The proviso to section 138 of the Act reads as under: "138. Dishonour of cheque for insufficiency, etc., of funds in the account.- 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the complaint was within time and if not, as to whether complainant has made out sufficient cause for condoning the delay. Since the learned Magistrate had not condoned the delay, he had no jurisdiction to take cognizance of the offence. Therefore taking cognizance by the learned Magistrate was held without jurisdiction. 19. In the present case, the facts are entirely different. Admittedly the complainant had filed I.A.No.1 seeking condonation of delay even though I.A.No.1 is filed under section 141 of the Act. It is well settled proposition of law that quoting of the wrong provision of law cannot be a ground to reject the application. 20. The complainant produced the postal endorsement issued by the Department of Posts dated 4-1-2010 in reply to the complaint dated 09-12-2009, enquiring about Registered Letter acknowledgement Due bearing No. 1705 dated 27-10-2009 and informing that the said RLAD has been delivered on 28-10-2009. Therefore it was clear that even though the Registered Letter with acknowledgement Due was issued on 27-10-2009, addressing the accused, the complainant had not received any intimation regarding its service and it was only on 4-1-2010, the complainant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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