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TMI Blog2022 (11) TMI 396X X X X Extracts X X X X X X X X Extracts X X X X ..... k, Kumarapalayam Branch, Namakkal District from the savings bank account maintained by the accused. The cheque bearing Nos:000143 dated 30/11/2018 was presented for collection on 28/01/2019 but returned with a memo dated 29/01/2019 stating "payment stopped by the drawer". The complainant sent statutory notice dated 01/02/2019 through registered post and same was received by the accused on 05/02/2019. Receiving the notice, the accused caused reply denying liability and the said reply notice dated 12/02/2019 was received by the complainant on 13/02/2019. 3. The private complaint presented on 20/02/2019 stating that, the cause of action arose for the dishonouring of the cheque on 30/11/2018 and the offences committed thereon after the cheque returned on 29/01/2019 and on 05/02/2019, when the legal notice received by the accused. Hence, the complaint is within time and there is no deviation or expiry of limitation. 4. In the petition to quash, the accused apart from contending that the cheque was not issued for any enforceable debt, had pleaded that the complaint filed before the expiry of 15 days from the date of receipt of the statutory notice is nonest in law. According to the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e as under:- Section 138 of Negotiable Instruments Act, 1881. 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, without prejudice to any other provision of this Act, be punished with imprisonment for [a term which may extend to two years], 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 in due course of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey and another reported in 2014 (10) SCC 713, wherein it is stated as below:- 30. Section 138 of the NI Act comprises of the main provision which defines the ingredients of the offence and the punishment that would follow in the event of such an offence having been committed. Appended to this section is also a proviso which has three clauses viz. (a), (b) and (c). The offence under Section 138 is made effective only on fulfilment of the eventualities contained in clauses (a), (b) and (c) of the proviso. For completion of an offence under Section 138 of the NI Act not only the satisfaction of the ingredients of offence set out in the main part of the provision is necessary but it is also imperative that all the three eventualities mentioned in clauses (a), (b) and (c) of the proviso are satisfied. Mere issuance of a cheque and dishonour thereof would not constitute an offence by itself under Section 138. 10. The Hon'ble Supreme Court in Kusum Ingots & Alloys Ltd -vs- Pennar Peterson Securities Ltd reported in 2000 (2) SCC 745 had stated that the following 5 ingredients are required to be satisfied to make out a case under Section 138 of Negotiable Instruments Act:- "(i) a pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drawer/accused is no complaint in the eye of the law, obviously, no cognizance of an offence can be taken on the basis of such complaint. Merely because at the time of taking cognizance by the court, the period of 15 days has expired from the date on which notice has been served on the drawer/accused, the court is not clothed with the jurisdiction to take cognizance of an offence under Section 138 on a complaint filed before the expiry of 15 days from the date of receipt of notice by the drawer of the cheque. 36. A complaint filed before the expiry of 15 days from the date on which notice has been served on drawer/accused cannot be said to disclose the cause of action in terms of clause (c) of the proviso to Section 138 and upon such complaint which does not disclose the cause of action the court is not competent to take cognizance. A conjoint reading of Section 138, which defines as to when and under what circumstances an offence can be said to have been committed, with Section 142(b) of the NI Act, that reiterates the position of the point of time when the cause of action has arisen, leaves no manner of doubt that no offence can be said to have been committed unless and until ..... X X X X Extracts X X X X X X X X Extracts X X X X
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