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CHEQUE BOUNS CASE

whether the notice dated 2.01.2004 was issued within the stipulated period of thirty days from the date of receipt of intimation of the dishonour of cheque.whether the notice was sent within 30 days from the date of returncheque was presented by the complainant for collection to his banker namely UCO Bank, Trichy Main Branch on 27.11.2003. It was dishonoured with the remarks “insufficient funds” on 2.12.2003. Information thereabout was received by the respondent on 3.12.2003. 4. On 02.01.2004, the respondent issued a legal notice to the appellant calling upon him to pay the amount in question within 15 days from the date of the receipt of the notice. Admittedly, the appellant neither sent a reply to the said notice nor paid the amount due.

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 REPORTABLE

 IN THE SUPREME COURT OF INDIA

 CRIMINAL APPELLATE JURISDICTION

 CRIMINAL APPEAL NO. 1077 OF 2009
 [Arising out of SLP (Crl.) No. 7797 of 2007]

Sivakumar ...Appellant

 Versus

Natarajan ...Respondent

 JUDGMENT

S.B. SINHA, J :

1. Leave granted.

2. This appeal is directed against a judgment and order dated 03.02.2007

passed by the Madurai Bench of the Madras High Court in Crl. Revision No.

849 of 2005 whereby and whereunder the Criminal Revision application

filed by the appellant herein was dismissed affirming the judgment of the

learned Principal Session Judge, Trichrapalli dated 08.11.2005 passed in Crl.

A No. 87/2005, preferred against the judgment dated 03.05.2005 in CC No.

69/2004 by the learned Judicial Magistrate III, Tiruchirapalli.
 2

3. On or about 14.08.2003, appellant borrowed a sum of Rs. 1,00,000/-

for the purpose of his business as loan from the complainant - respondent.

The said amount was to be repaid within a period of three months. On or

about 20.11.2003 the appellant handed over a cheque bearing No. 0652756

dated 27.11.2003 for a sum of Rs. 1,00,000/- in favour of the respondent.

The said cheque was presented by the complainant for collection to his

banker namely UCO Bank, Trichy Main Branch on 27.11.2003. It was

dishonoured with the remarks "insufficient funds" on 2.12.2003. Information

thereabout was received by the respondent on 3.12.2003.

4. On 02.01.2004, the respondent issued a legal notice to the appellant

calling upon him to pay the amount in question within 15 days from the date

of the receipt of the notice. Admittedly, the appellant neither sent a reply to

the said notice nor paid the amount due.

 Respondent thereafter filed a complaint petition against the appellant

under Section 138 of the Negotiable Instruments Act, 1881 (for short "the

Act") before the Judicial Magistrate No. III, Tiruchirapalli.
 3

5. The learned Judicial Magistrate III convicted the appellant under

Section 138 of the Act and sentenced him to undergo one year's simple

imprisonment and a fine of Rs. 5000/- and in default thereof to undergo

further six months of simple imprisonment. He was also directed to pay a

sum of Rs. 1,00,000/- as compensation to the respondent under section

357(1) of the Code of Criminal Procedure.

6. Aggrieved thereby and dissatisfied therewith, appellant preferred an

appeal before the Principal Session Judge, Tirchirapalli, which was

dismissed.

7. Appellant filed a revision application thereagainst before the High

Court, which by reason of the impugned judgment has been dismissed.

 Appellant is, thus, before us.

8. Before proceeding further, we may place on record that subsequent to

the passing of the impugned judgment, a settlement has been entered into by

and between the appellant and the respondent wherein it has been stated:
 4

 "At this juncture, with the consensus of both the
 parties, on the assurance of the 2nd party, the 2nd
 party shall receive a sum of Rs. 30,000/- from the
 1st party and shall not take any action against the
 judgment rendered by the court and there shall be
 no interest over the issue before or after the
 settlement and as such we both have signed in the
 presence of the witnesses. 2nd party has also
 consented to issue a receipt for having received the
 said amount to the 1st party."

9. The core question which arises for consideration is as to whether the

notice dated 2.01.2004 was issued within the stipulated period of thirty days

from the date of receipt of intimation of the dishonour of cheque.

 Section 138 of the Act reads 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 provisions of this Act, be
 punished with imprisonment for a term which may
 extend to two years, or with fine which may extend
 to twice the amount of the cheque, or with both:
 5

 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 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."

10. By reason of the provisions of the Act, a legal presumption in regard

to commission of a crime has been raised. The proviso appended thereto,

however, states that nothing contained in the main provision would apply

unless conditions specified in clauses (a), (b) and (c) thereof are complied

with. Clauses (a), (b) and (c) of the proviso, therefore, lay down conditions

precedent for applicability of the main provision. Section 138 of the Act

being penal in nature, indisputably, warrants strict construction.
 6

 In M/s. Harman Electronics (P) Ltd. & Anr. v. M/s. National

Panasonic India Ltd. [2008 (16) SCALE 317], this Court held:

 "8. The proviso appended thereto imposes certain
 conditions before a complaint petition can be
 entertained.

 9. Reliance has been placed by both the learned
 Additional Sessions Judge as also the High Court
 on a decision of this Court in K. Bhaskaran v.
 Sankaran Vaidhyan Balan and Anr.. This Court
 opined that the offence under Section 138 of the
 Act can be completed only with the concatenation
 of a number of acts, namely, (1) Drawing of the
 cheque, (2) Presentation of the cheque to the bank,
 (3) Returning the cheque unpaid by the drawee
 bank, (4) Giving notice in writing to the drawer of
 the cheque demanding payment of the cheque
 amount, (5) failure of the drawer to make payment
 within 15 days of the receipt of the notice. It was
 opined that if five different acts were done in five
 different localities, any one of the courts exercising
 jurisdiction in one of the five local areas can
 become the place of trial for the offence under
 Section 138 of the Act and the complainant would
 be at liberty to file a complaint petition at any of
 those places. As regards the requirements of giving
 a notice as also receipt thereof by the accused, it
 was stated:

 `18. On the part of the payee he has to make
 a demand by "giving a notice" in writing. If
 that was the only requirement to complete
 the offence on the failure of the drawer to
 pay the cheque amount within 15 days from
 7

 the date of such "giving", the travails of the
 prosecution would have been very much
 lessened. But the legislature says that failure
 on the part of the drawer to pay the amount
 should be within 15 days "of the receipt" of
 the said notice. It is, therefore, clear that
 "giving notice" in the context is not the same
 as receipt of notice. Giving is a process of
 which receipt is the accomplishment. It is
 for the payee to perform the former process
 by sending the notice to the drawer at the
 correct address.'

 *** *** ***

14. It is one thing to say that sending of a notice is
one of the ingredients for maintaining the
complaint but it is another thing to say that
dishonour of a cheque by itself constitutes an
offence. For the purpose of proving its case that
the accused had committed an offence under
Section 138 of the Negotiable Instruments Act, the
ingredients thereof are required to be proved. What
would constitute an offence is stated in the main
provision. The proviso appended thereto, however,
imposes certain further conditions which are
required to be fulfilled before cognizance of the
offence can be taken. If the ingredients for
constitution of the offence laid down in the
provisos (a), (b) and (c) appended to Section 138 of
the Negotiable Instruments Act intended to be
applied in favour of the accused, there cannot be
any doubt that receipt of a notice would ultimately
give rise to the cause of action for filing a
complaint. As it is only on receipt of the notice the
accused at his own peril may refuse to pay the
amount. Clauses (b) and (c) of the proviso to
Section 138 therefore must be read together.
Issuance of notice would not by itself give rise to a
 8

 cause of action but communication of the notice
 would."

 Keeping in view the aforementioned legal principle, interpretation of

clause (b) of the proviso appended to Section 138 of the Act has to be

considered.

11. We may, however, at the outset notice that both clauses (a) and (b) of

the proviso appended to Section 138 of the Act employed the term "within a

period". Whereas clause (a) refers to presentation of the cheque to the bank

within a period of six months from the date on which it is drawn, clause (b)

provides for issuance of notice "to the drawer of the cheque within thirty

days of the receipt of information". The words "within thirty days of the

receipt of information" are significant. Indisputably, intimation was

received by the respondent from the bank on 3.12.2003.

 The Parliament advisedly did not use the words `from the date of

receipt of information' in Section 138 of the Act. It is also of some

significance to notice that in terms of Section 9 of the General Clauses Act,

1897, whereupon reliance has been placed by the High Court, the statute is

required to use the word "from" and for the purpose of including the last in a

series of days or any other period of time, to use the word "to".
 9

 The departure made from the provisions of Section 9 of the General

Clauses Act by the Parliament, therefore, deserves serious consideration.

12. Indisputably, the notice was issued on the 31st day and not within a

period of thirty days from the date of receipt of intimation from the bank. If

Section 9 of the General Clauses Act is not applicable, clause (b) of the

proviso appended to Section 138 of the Act was required to be complied

with by the respondent for the purpose of maintaining a complaint petition

against the appellant.

 In Munoth Investments Ltd. v. Puttukola Properties Ltd. and Another

[(2001) 6 SCC 588] construing clause (a) of the proviso appended to Section

138 of the Act, this Court held:

 "5. In our view, the High Court committed
 material irregularity in not referring to the
 aforesaid evidence which was recorded by the
 Metropolitan Magistrate. Section 138(b) of the Act
 inter alia provides that the payee has to make
 demand for the payment of money by giving a
 notice "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".
 So fifteen days are to be counted from the receipt
 of information regarding the return of the cheque
 as unpaid. In the present case, it is the say of the
 complainant that the cheque was presented for
 1

 encashment on 12th; it was returned to the Bank
 on 13th and information was given to the
 complainant only on 17th, as 14th, 15th and 16th
 were Pongal holidays. The learned counsel fairly
 pointed out that in the complaint it has been stated
 that the complainant had received intimation with
 regard to the return of the said cheque from his
 banker on 13-1-1994. However, he submitted that
 this is an apparent mistake and for explaining that
 mistake the appellant has led the evidence before
 the trial court. Undisputedly, he pointed out that in
 the State of Tamil Nadu, 14-1-1994 to 16-1-1994
 there were Pongal holidays and, therefore, the
 appellant came to learn about the dishonour of his
 cheque on 17-1-1994."

 We, with respect, agree with the approach of the learned Judges.

13. Our attention has furthermore been drawn to a decision of the Kerala

High Court in K.V. Muhammed Kunhi v. P. Janardhanan [1998 Crl. L.J.

4330], wherein construing proviso (a) appended to Section 138 of the Act, a

learned Single Judge held:

 "...A comparative study of both the Sections in the
 Act and the General Clauses Act significantly
 indicate that the period of limitation has to be
 reckoned from the date on which the cheque or
 instrument was drawn. The words `from' and `to'
 employed in Section 9 of the General Clauses Act
 are evidently clear that in cases where there is an
 ambiguity or suspicion with reference to the date
 of commencement of period of limitation in any
 Act or special enactment, the words `from' and
 1

 `to' employed in Section 9 of the General Clauses
 Act can be pressed into service.."

 [See also K.C. Nanu v. N. Vijayan and Anr. 2008 (1) KLJ 327]

 We are in agreement with the aforementioned view.

14. Mr. B. Balaji, learned counsel appearing on behalf of the respondent,

however, would contend that the appellant having entered into a settlement

in terms whereof he had deposited a sum of Rs. 30,000/- and an assurance

having been given that no action would be taken against the judgment

rendered by the High Court, this Court should not exercise its discretionary

jurisdiction under Section 136 of the Constitution of India to interfere with

the impugned judgment. We fail to persuade ourselves to agree with the

aforementioned submission.

15. Appellant has a fundamental right of liberty in terms of Article 21 of

the Constitution of India. Liberty of the appellant, therefore, could not have

been taken away except in accordance with the procedure established by

law.

 Principles of `Estoppel' or `Waiver' would not, therefore, apply in the

instant case.
 1

 In any event, the respondent himself has backed out from the

aforementioned settlement. He, therefore, cannot be permitted to take a

different stand.

16. Having, however, regard to the facts and circumstances of the case,

we, in exercise of our jurisdiction under Article 142 of the Constitution of

India, direct that as the civil liability of the appellant stands admitted, the

said sum received by the respondent need not be refunded.

17. For the reasons aforementioned, the impugned judgment cannot be

sustained, which is set aside with the aforementioned directions. The appeal

is allowed.

 ...............................J.
 [S.B. Sinha]

 ................................J.
 [Asok Kumar Ganguly]
New Delhi;
May 15, 2009
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