Judgment (OPEN COURT)

S. Ravindra Bhat, J. —In all these cases identical Orders made by the learned Metropolitan Magistrate on 30.3.2007 dismissing the complaints preferred, have been impugned. The petitions involve identical questions of fact and law. Since the complaints were dismissed without further proceeding, on the first date of hearing, by the Trial Court, these revision petitions are being disposed of finally at the admission stage.

2. The impugned Order reads as follows:

“Heard. The perusal of the averments made in the complaint of the complainant is beyond statutory period and the same has already been observed by learned ACCM. Moreover no application for condonation of delay has been filed, Therefore, the case is hereby dismissed. File be consigned to record room.”

3. The complaints in all the proceedings filed by the common petitioner-bank were identically phrased; they alleged commission of offences under Sections 138/141 of Negotiable Instruments Act. It was alleged that the cheques in question were dishonoured upon presentation as a consequence legal notices under Section 138(b) of the Act were issued on 15.12.2006. Since the notices went unheeded and according to the complainant the accused did not comply with their terms and pay the amounts, the complaints were filed.

4. Learned Counsel contended that the Magistrate fell into error in concluding that the complaints were filed beyond the statutory period. It was submitted that the Magistrate was unduly influenced by the observations of the Additional Chief Metropolitan Magistrate, who appears to have made a noting to such an effect while marking the cases to the trial Court.

5. Counsel submitted that the notices in that sense were issued on 15.12.2006 and in terms of Section 27 of the General Clauses Act, 1897 (hereafter ‘the 1897 Act’) service would be deemed to be completed in the ordinary course at least one week after their issuance. Counsel contended that neither the undelivered letters nor A.D. cards were received by the complainants.

6. Learned Counsel for the petitioner relied upon the decision of the Supreme Court in M/s. Dalmia Cement (Bharat) Ltd. v. M/s Galazy Traders and Agencies Ltd. and Ors.1 It was contended that the Court had taken note of Section 27 of the 1897 Act and observed that the sender of notice enjoys benefit of a presumption. Counsel contended that in these circumstances the filing of the complaints on the 48th day after the issuance of the legal notice could not be construed as beyond the time prescribed as it would lead to an obvious anomaly, i.e. time being reckoned from the date of the notice.

7. Section 138, to the extent it is material is extracted below:

“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 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 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 thirty days]

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