NISHANT
Dishonour of Cheque - Notice Returned Unversed / Unclaimed - When Notice said to have been Served on Accused ?
NISHANT MEHROTRA 15 May 2018

Dishonour of Cheque - Notice Returned Unversed / Unclaimed - When Notice said to have been Served on Accused ?

Kerela High Court :: Reckoning of the date of deemed receipt as the date of return of notice as in the instant case, where the notice has been returned unserved/unclaimed is unlikely to result in any prejudice to even the accused, as the accused would only get further time from the date of deemed service to discharge the liability due under the cheque. Whereas if hyper technical approach is taken to reckon the said date from the date when the postman made the endorsement that the addressee refused or returned the postal article, then it would cause serious prejudice to the complainant, as in many a case he might get intimation regarding the return of the notice quite late, which might even be after the period of 15 days from the date on which the postman had actually made the endorsement while attempting to serve notice in the address of the accused. This would result in the complaint that may be so filed later, as barred by limitation. In this context, it is noteworthy to mention that prior to the amendment introduced by Sec.9 of the Central Amendment Act 55 of 2002, made effective from 6.2.2003, there was no power conferred on the criminal court to condone the delay in filing a complaint for offence punishable under Sec. 138 of the Negotiable Instruments Act in view of the mandatory provisions contained clause (b) of Sec. 142 of the N.I. Act, as it stood then, which mandated that complaint is to be filed within one month of the date, on which the cause of action arises under clause (c) of proviso to Sec. 138, etc. It was only later as per the said Amendment Act, 55 of 2002 made effective from 6.2.2003 that the Parliament had engrafted proviso to clause (b) of Sec.142(1) providing that cognizance of the complaint could 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 stipulated period. So in a situation as in the instant case, which is covered by the provisions that existed prior to the Act 55 of 2002 (made effective prospectively only from 6.2.2003) such a complaint as mentioned herein above would have been totally time barred, with no provision for condoning the delay. This would have led to drastic and undesirable consequence on complainants, who could not be blamed for the time taken by the Postal Department in returning such unserved registered postal articles. [Para 13]


Case:

K. CHERIAN KURIAN
Vs
1. P.K. RADHAKRISHNAN

2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.



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