Case Note & Summary
The case involves a criminal revision application filed by the accused, Shivnath Suryoba Gaonkar, challenging his conviction under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) for dishonour of a cheque. The complainant, Bicholim Marchant Urban Co-operative Credit Society Pvt. Ltd., alleged that a cheque issued by the accused was returned unpaid due to insufficient funds, and the bank intimated the dishonour on 9.10.2020. The complainant sent a legal notice dated 6.11.2020, but it was actually posted on 9.11.2020, which was the 31st day from the date of receipt of intimation. The trial court convicted the accused, and the Sessions Court upheld the conviction, holding that the notice was issued within 30 days as 8.11.2020 was a Sunday, invoking Section 10 of the General Clauses Act, 1897. The accused challenged this in revision before the Bombay High Court. The key legal issue was whether the notice was 'given' within 30 days as required under Section 138(1)(b) of the NI Act. The accused argued that the notice was posted on 9.11.2020, the 31st day, and that Section 10 of the General Clauses Act could not extend the mandatory 30-day period. The complainant contended that since 8.11.2020 was a Sunday, the notice could be sent on the next working day under Section 10. The High Court analyzed the provision and held that 'giving notice' means actual dispatch, not the date on the notice. Since the notice was posted on 9.11.2020, it was beyond 30 days. The court further held that Section 10 of the General Clauses Act does not apply because the notice could be sent by modes other than post, and the 30-day period is a mandatory condition, not a limitation period under a special law. The court relied on precedents including K. Bhaskaran v. Sankaran Vaidhyan Balan and others, and distinguished cases cited by the complainant. The court allowed the revision, set aside the conviction, and acquitted the accused.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Notice Period - Section 138(1)(b) - The notice demanding payment must be 'given' within 30 days from receipt of bank intimation; 'giving notice' means actual dispatch, not the date on the notice. Held that the notice posted on the 31st day is beyond the statutory period, rendering the complaint not maintainable (Paras 20-27).
B) General Clauses Act - Extension of Time - Section 10 - The 30-day period under Section 138 NI Act is mandatory and cannot be extended under Section 10 of the General Clauses Act, as the notice could be sent by modes other than post, and the provision is not a limitation period under a special law. Held that Section 10 does not apply to extend the 30-day period (Paras 8-9, 28-30).
Issue of Consideration
Whether notice under Section 138(1)(b) of the Negotiable Instruments Act was sent within 30 days from the date of knowledge of bouncing of the cheque, and whether Section 10 of the General Clauses Act can extend that period.
Final Decision
The High Court allowed the criminal revision application, set aside the conviction and sentence imposed by the trial court and confirmed by the Sessions Court, and acquitted the applicant of the offence under Section 138 of the Negotiable Instruments Act, 1881.
Law Points
- Notice under Section 138 NI Act must be given within 30 days from receipt of bank intimation
- 'giving notice' means actual dispatch
- General Clauses Act Section 10 not applicable to extend 30-day period
- limitation cannot be extended under Limitation Act or General Clauses Act
Case Details
2024 LawText (BOM) (10) 9
Criminal Revision Application No. 676 of 2024-Filing
Mr Shailesh Redkar and Ms Namrata Gaonkar for applicant; Ms Manjeeta Manerkar and Ms Akshaya Nandokar for respondent no.1; Mr G. Nagvekar, Addl. Public Prosecutor for respondent no.2
Shri. Shivnath Suryoba Gaonkar
The Bicholim Marchant Urban Co-operative Credit Society Pvt. Ltd. and State of Goa
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Nature of Litigation
Criminal revision application against conviction under Section 138 of the Negotiable Instruments Act, 1881 for dishonour of cheque.
Remedy Sought
The applicant (accused) sought quashing of the conviction and acquittal on the ground that the demand notice was sent beyond the statutory period of 30 days.
Filing Reason
The applicant challenged the concurrent findings of the trial court and Sessions Court that the notice was within time, arguing that the notice was posted on the 31st day.
Previous Decisions
The trial court convicted the applicant under Section 138 NI Act. The Sessions Court dismissed the appeal, holding that the notice was issued within 30 days as 8.11.2020 was a Sunday, invoking Section 10 of the General Clauses Act.
Issues
Whether the demand notice under Section 138(1)(b) of the Negotiable Instruments Act was 'given' within 30 days from the date of receipt of bank intimation.
Whether Section 10 of the General Clauses Act, 1897 can extend the 30-day period for giving notice under Section 138 NI Act.
Submissions/Arguments
Applicant: The notice was posted on 9.11.2020, which is the 31st day from the date of receipt of intimation (9.10.2020). The 30-day period expired on 8.11.2020. Section 10 of the General Clauses Act cannot extend this mandatory period as notice can be sent by modes other than post. Relied on K. Bhaskaran and other cases.
Respondent: Since 8.11.2020 was a Sunday, the notice could be sent on the next working day (9.11.2020) under Section 10 of the General Clauses Act. The notice was dated 6.11.2020 and sent by registered post, thus within time. Relied on Sridevi Datla and other cases.
Ratio Decidendi
The requirement under Section 138(1)(b) of the Negotiable Instruments Act that the payee must 'give notice in writing' within 30 days from receipt of bank intimation is mandatory. 'Giving notice' means actual dispatch of the notice, not the date on the notice. The 30-day period cannot be extended under Section 10 of the General Clauses Act because the notice could be sent by modes other than post, and the provision is not a limitation period under a special law. Therefore, a notice posted on the 31st day is invalid, and the complaint is not maintainable.
Judgment Excerpts
The words 'giving a notice in writing' must be attributed to the act of actually sending notice by particular mode.
The said provisions nowhere mandates that such notice must be sent by registered post AD acknowledgment dues.
Thus the entire act of giving notice must be complied with within a period of 30 days from the date of receipt of return memo from the bank as a statutory obligation.
Procedural History
The complainant filed a complaint under Section 138 NI Act before the Judicial Magistrate First Class, which convicted the accused. The accused appealed to the Sessions Court, which dismissed the appeal. The accused then filed a criminal revision application before the High Court of Bombay at Goa, which was heard and allowed on 1st October 2024.
Acts & Sections
- Negotiable Instruments Act, 1881: 138, 138(1)(b)
- General Clauses Act, 1897: 10
