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2010 DIGILAW 1116 (BOM)

Gurudas Budho Velip v. Premanand Krishna Anvekar

2010-08-05

N.A.BRITTO

body2010
JUDGMENT: Heard. 2. The contention is that the applicant-accused could not have been convicted, for non compliance of Clause (b) of Section 138 of the Negotiable Instruments Act, 1881. In other words, according to the accused the Complainant had failed to send the demand notice to the accused within 15 days, as was then required, from the receipt of information by the Complainant from the Bank regarding the return of the cheque, unpaid. 3. The Respondent-Complainant has chosen to remain absent, though duly served. 4. The Complainant presented two cheques issued by the accused for collection, one dated 17-11-1998 for Rs.17,000/-, and the other dated 10-12-1998 for Rs.4000/- first on 20-2-1999, and then on 20-3-1999 and on 3-5-1999. On each of the occasions, they were returned dishonoured for insufficient funds. A notice dated 5-5-1999 was sent by the Complainant to the accused which the accused received on 28-5-1999 and the accused replied to it by letter dated 3-6-1999. 5. Obviously, the statutory demand notice had to be sent within 15 days, in terms of Section 138(b) of the Act, from the date of the receipt of information by the Complainant from the Bank regarding the return of the cheque unpaid, which obviously the Complainant did not. There is no evidence to show as to when the notice dated 5-5-1999 was posted but the reply of the accused showed that it was received by the accused on 28-5-1999. The Complainant was given an opportunity to produce the A.D. Card of the notice sent, but the Complainant did not produce the same as not traceable. Adverse inference has got to be drawn against the Complainant for non production of the said A.D. Card. It was also suggested to him that the notice was sent on 22-5-1999 and to that the Complainant stated that he did not remember. The accused having failed to prove that the notice was sent within 15 days from 3-5-1999, the benefit that Section 138(b) was not complied with has to go to the accused. This Court in the case of Goa Antibiotics & Pharmaceuticals Ltd. v. R. K. Chawda & another(2009(2) GLR 63) has held that a complaint could be dismissed because the statutory notice was not sent within 15 days of the receipt of the information from the Bank that the cheque was dishonoured, as required by Clause (b) of Section 138 of the Act. 6. 6. Section 138 of the Act incorporates the principle of strict liability and being a penal provision it has got to be construed strictly. In N. G. Narayanaswamy v. M/s.Vijayanand Roadlines Ltd.(2001 Cri.L.J. 211) the criminal proceedings were quashed for non compliance of Section 138(b) of the Act i.e. for not having issued to the drawer of the cheque the notice within 15 days of the receipt of information by him from the Bank regarding the return of cheque as unpaid, and, it was further held that the complaint did not strictly constitute an offence under Section 138 of the Act. In Munoth Investments Ltd. v. Puttukola Properties Ltd. and another( (2001) 6 SCC 582 ) the need to send a notice within 15 days was recognized and it was stated that the limitation period for issuing notice of demand commences from the receipt of the information regarding the return of the cheque as unpaid. 7. The learned trial Court has proceeded to consider the point of limitation in terms of Clause (c) of Section 138 of the Act and the learned Additional Sessions Judge has considered the point of limitation in terms of Clause (b) of Section 142 r/w Section 138 of the Act. Both the Courts below have not considered the issue of limitation in terms of Clause (b) of Section 138 of the Act. The learned Additional Sessions Judge has also proceeded on the basis that the Complainant had 30 days to send the notice without considering that 15 days to 30 days were substituted only in the year 2002, and enforced from 6-2-2003. That the amendment is prospective has been decided by the Apex Court in Anil Kumar Goel(2009(1) SSC(Cri) 209). 8. Considering that there was non compliance of Clause (b) of Section 138 of the Act, the accused could not have been convicted. Revision therefore succeeds. The Judgments of the Courts below are hereby set aside, and the accused is hereby acquitted under Section 138 of the Act.