RAM KUMAR SHARMA Vs. OM TRADERS
HIGH COURT OF UTTARAKHAND
RAM KUMAR SHARMA
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(1.) Learned counsel for the petitioner submits that as per contents of the complaint filed under Section 138 of the Negotiable Instruments Act, 1881, statutory notice under Section 138 (c) of the NI Act was issued by the complainant to the petitioner by registered post AD and UPC on 22.05.2010. However, a vague averment is made in the complaint that notice was served. Date of service of notice is not mentioned in the complaint. He further submitted that complaint was filed on 09.07.2010 after expiry of 45 days from the date of issuance of notice, therefore, complaint is time barred.
(2.) Section 138 and 142 of the Negotiable Instruments Act read 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, without prejudice. to any other provision of this Act, be punished with imprisonment for a term which may be extended to two year, 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 cheque as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.- For the purposes of this section," debt or other liability" means a legally enforceable debt or other liability.
142. Cognizance of offences. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974 ) -
(a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;
(b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138;
[Provided that the cognizance of a complaint may be taken by the court after the prescribed period, if the complainant satisfies the court that he had sufficient cause for not making a complaint within such period]
(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138."
(3.) As per proviso (b) and (c) of Section 138 of the Act demand notice shall be issued within 30 days of the information received from the bank regarding the return of cheque. Drawer of the cheque has to make payment of the cheque amount within fifteen days of the receipt of the demand notice. If payment is not made within fifteen days, cause of action would arise in favour of the complainant. Thereafter, complaint can be filed within one month of the date of cause of action arises.;
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