TMI Blog2019 (5) TMI 1912X X X X Extracts X X X X X X X X Extracts X X X X ..... lfilled. Proviso (c) spells out a requirement that the drawer of the cheque has failed to make payment to the holder in due course or payee within fifteen days of the receipt of the notice. The second Respondent does not as a matter of fact, admit that the legal notice dated 31 December 2015 was served on him. The Appellant has in the complaint specifically narrated the circumstance that despite repeated requests to the postal department, no acknowledgment of the notice was furnished - Cognizant as we are of the requirement specified in proviso (b) to Section 138, that the notice must be issued within thirty days of the receipt of the memo of dishonour, we have proceeded on the basis that it is the first notice dated 31 December 2015 which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000 which were returned unpaid under a memo issued by the UCO Bank, Begusarai on 20 November 2015. The Appellant received the memo on 4 December 2015. Following this, a legal notice was issued on 31 December 2015 intimating the dishonour of the cheque. According to the Appellant, between 14 February 2016 and 23 February 2016, he made queries with the postal department but no proof of service was provided. Accordingly, on 26 February 2016, a second legal notice was issued. This was replied to by the second Respondent on 2 March 2016. Eventually, a complaint Under Section 138 was instituted on 11 May 2016. 6. The Chief Judicial Magistrate, Begusarai by an order dated 14 July 2016, condoned the delay in filing the complaint. While taking co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 31 December 2015 which was within thirty days of the receipt of the memo of dishonour; (iii) The complaint which was lodged on 11 May 2016 was beyond the stipulated period from the date of issuance of the first notice; (iv) The CJM had condoned the delay which had occurred in the institution of the complaint only for the period after 6 April 2016 after the issuance of the second notice; and (v) In the decision of the three judge Bench in MSR Leathers (supra), there was a re-presentation of the cheque as a result of which, a fresh notice was held to be within the ambit of the law. 9. Section 138 provides thus: 138. Dishonour of cheque for insufficiency, etc., of funds in the account. Where any cheque drawn by a pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... receipt of the said notice. 10. In the present case, the facts narrated above indicate that the Appellant issued a legal notice on 31 December 2015. This was within a period of thirty days of the receipt of the memo of dishonour on 4 December 2015. Consequently, the requirement stipulated in proviso (b) to Section 138 was fulfilled. Proviso (c) spells out a requirement that the drawer of the cheque has failed to make payment to the holder in due course or payee within fifteen days of the receipt of the notice. The second Respondent does not as a matter of fact, admit that the legal notice dated 31 December 2015 was served on him. The Appellant has in the complaint specifically narrated the circumstance that despite repeated requests to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt has merely adverted to the presumption that the first notice would be deemed to have been served if it was dispatched in the ordinary course. Even if that presumption applies, we are of the view that sufficient cause was shown by the Appellant for condoning the delay in instituting the complaint taking the basis of the complaint as the issuance of the first legal notice dated 31 December 2015. 12. In the view which we have taken, we have come to the conclusion that the impugned judgment of the High Court is unsustainable. The appeal is accordingly allowed and the order passed by the learned Single Judge is set aside. The complaint shall accordingly stand restored to the file of the trial court. 13. We have not expressed any opini ..... X X X X Extracts X X X X X X X X Extracts X X X X
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