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TMI Blog2022 (2) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to as the NI Act] in the court of the Sub-Divisional Judicial Magistrate, Dharmanagar, North Tripura which was registered as CR (NI) No. 20 of 2012. The main allegation contained in the said complaint was that the respondent borrowed an amount of Rs. 2,50,000/- from the complainant on 26.04.2010 with a condition to refund the same within a period of three months. But, the respondent did not refund the said money to the complainant within time. The respondent ultimately issued a cheque on 26.07.2011 in the name of the complainant. When the said cheque was deposited for encashment of the bank account on 23.12.2011, it was dishonoured with the remark that the account was closed. Thereafter, the complainant served notice dated 03.01.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate held that the complainant had failed to prove that he had any enforceable debt to the respondent. Learned Magistrate further held that the statutory notice [Exbt. 4] as contemplated under Section 138 of NI Act was not properly served upon the respondent. 8. Assailing the aforesaid findings recorded by learned CJM, Mr. Chakraborty, learned Sr. counsel, at the very outset, has taken up the point whether the notice was properly served upon the respondent or not. According to learned Sr. counsel, in the instant case, since notice was served upon the wife of respondent, that would be deemed to be effected upon the respondent himself who was the drawer of the cheque. In support of his submission, Mr. Chakraborty, learned Sr. counsel has invi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for the respondent. 11. Here, it would be apposite to have a look at Section 138 of the NI Act, which reads as under: 138. Dishonour of cheque for insufficiency, etc., of funds in the account. --Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drawer of the cheque. Now, if I read Clause (b) of Section 138 of the NI Act with the expression used in Section 27 of the General Clauses Act, then, it comes to fore that where any Central Act made after the commencement of the General Clauses Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected to the addressee unless the contrary is proved. Here the language employed by the Legislature that "unless a different intention appears" appears to be very significant." As I said earlier, the language used in Clause (b) of Section 138 of the NI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specifies the conditions which are required to be satisfied before a person can be convicted for an offence enumerated in the substantive part of the section. Clause (b) of the proviso to Section 138 cast on the payee or the holder in due course of the cheque, as the case may be, a duty to make a demand for 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 cheque as unpaid. 7. In the present case, the notice of demand was served upon the wife of the appellant and not the appellant. Therefore, there is no escape from the conclusion that complainant-respondent had not complied with the requirement ..... X X X X Extracts X X X X X X X X Extracts X X X X
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