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2001 DIGILAW 71 (JK)

Rajesh Uppal v. Rajesh Jain

2001-03-29

O.P.SHARMA

body2001
1. A complaint u/s 138 of the Negotiable Instruments Act was filed by Rajesh Jain against Rajesh Uppal and the Forest Magistrate, Jammu took cognizance and issued process against the petitioner by his order dated 10-11-1998. The petitioner hereinafter appeared before the court and applied for dropping of the proceedings on the ground that the cognizance has been taken after the expiry of period of limitation within which the complaint could be filed. The learned Magistrate rejected this application by his order dated 09-09-2000. By the same order complainant was allowed to produce the original cheque photo copy of which had already been placed on record with the complaint. 2. The petitioner challenges the order taking coginzance on the ground that the complaint is barred by time because the notice calling upon the petitioner to pay Rs. 5400/- for which cheque No. 5130005 dated 20-03-1998 drawn on the Jammu and Kashmir Bank Ltd. Residency Road, Jammu was issued after the expiry of 15 days from the date cheque was dishonoured. The complainant was informed that the cheque has been dishonoured. 3. The contention of Mr. Subash learned counsel appearing for the petitioner is that the complaint get the information that the accused-petitioner had failed to arrange the payment of the cheque on 17-09-1998. So the period of 15 days within which the notice had to be issued would commence from this date. Even if the day Bank informed him that the cheque had been dishonoured is excluded 15 days would expire on 2nd Oct. 1998. But as per receipt the notice was sent through registered post on 03-10-1998 and as such it is beyond the period of limitation. He next argued that even this notice was returned by the postal authorities with the endorsement despite repeated visits as the postman could not meet the addressee. This according to the learned counsel is no service because if the addressee could not be reached by the postman, complainant should have made effort to serve him notice by any other means including pasting it on the outer door of his house. Since it is not case of refusal of the notice, therefore, it cannot be deemed service of the notice in the absence of which the complaint is not maintainable. 4. Contention of Mr. Since it is not case of refusal of the notice, therefore, it cannot be deemed service of the notice in the absence of which the complaint is not maintainable. 4. Contention of Mr. Bhatia appearing for the complainant on the other hand is that under law limitation would start from 18th of Sept. 1998 because he received information a day earlier from the bank and that day has to be excluded. Since the limitation started on 18th, this day has also be excluded under General Clauses Act. Even otherwise, assuming that the period of limitation would commence from 18th Sept. 1998, 15 days would expire on 2nd Oct. 1998. Since Gandhi Jyanti falls on Oct. 2, every year which is a public holiday, therefore, the notice could be despatched on 3rd Oct. Notice was, therefore, despatched within 15 days because the day on which the post office was closed had to be excluded while computing limitation in terms of section 10 of the General Clauses Act. Mr. Bhatia further argued that since accused could not be reached by the postman despite repeated visits, it is deemed to be due service and the complaint cannot be thrown out on this count. 5. The limitation in this case would commence not from 17th but from 18th Sept. 1998 because the Bank informed the complainant on 17 and this day has to be excluded. If the limitation started on 18 even that day had to be excluded while computing the period of limitation as held by the apex court in M/s Seketh India Ltd. Vs. M/s India Securities Ltd. AIR 1999 SC 1090 holding that:- "Ordinarily in computing the time, the rule observed is to exclude the first day and to include the last. Applying the said rule, the period of one month for filing the complaint will be reckoned from the day immediately following the day on which the period of 15 days from the date of the receipt of the notice by the drawer expires. Period of 15 days, in the present case, expired on 14th October, 1995. So cause of action for filing complaint would arise from 15th October, 1995. That day (15th October) is to be excluded for counting the period of one month. Complaint is filed on 15th November, 1995. Period of 15 days, in the present case, expired on 14th October, 1995. So cause of action for filing complaint would arise from 15th October, 1995. That day (15th October) is to be excluded for counting the period of one month. Complaint is filed on 15th November, 1995. The result would be that the complaint filed on 15th November is within time." This has been followed in Tarun Prasad Chatterjee Vs. Dinanath Sharma AIR 2001 SC 36. However, even if 18th is not excluded, the notice was sent within 15 days because 2nd October being a public holiday, the complainant could not have despatched it through registered post. So notice has been despatched within 15 days from date complainant was informed of the dishonour of the cheque. 6. The next question is whether endorsement of the postman that the registered letter containing notice could not be delivered to the petitioner because he was not available at the place of address amounts to service of the notice. The endorsement of the post-office indicates that postman had regularly visited the addressee from 5th to 10th before the notice was returned to the complainant. The complainant made no effort to demand money from the accused after notice was received back by him or before the notice was sent to him. The question arises whether failure to serve notice on the accused rise gives cause of action to the complainant. This question fell for the consideration of their lordships in K. Bhaskaran Vs. Sankaran Vaidhyan Balan 1999Cri.L.J. 4606 (SC). After referring to the mandate of section 27 of the General Clauses Act, their lordships held as under:- "No doubt section 138 of the Act does not require that the notice should be given only by "post". Nonetheless the principle incorporated in Section 27 (quoted above) can profitably be imported in a case where the sender has despatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such non-service. Any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to the strategy of subterfuse by successfully avoiding the notice. 25. Any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to the strategy of subterfuse by successfully avoiding the notice. 25. Thus when a notice is returned by the sendee as unclaimed such dated would be the commencing date in reckoning the period of 15 days contemplated in Clause (d) to the proviso of Section 138 of the Act of course such reckoning would be without prejudice to the right of the drawer of the cheque to show that he had no knowledge that the notice was brought to his address. In the present case the accused did not even attempt to discharge the burden to rebut the aforesaid presumption." Since the postman had paid repeated visits to deliver the letter containing notice, therefore, it is a deemed service unless accused is able to prove that the notice was not sent on proper address. So it is for the petitioner to prove that notice was not served upon him. This is a question of fact to be decided by the Magistrate. The argument that the complainant made no effort to demand money even after the notice was received back is without any merit because even if he had made demand, it would be beyond 15 days from the date he was informed that the cheque has not been honoured. In view of the above there is no merit in this petition which is dismissed.