Sunil Kumar vs Yog Raj

Adarsh Kumar Goel, J.—Counsel for the petitioner contends that the complaint was filed on 20.1.1996, which was within 14 days of return of notice dated 30.12.1995, which was returned on 6.1.1996 with the remarks that the addressee was not found. It is contended that the complaint is pre-mature.

In Narsingh Das Tapadia Vs. Goverdhan Das Partani and Another, it was held that a complaint cannot be dismissed on the ground that the same was filed before expiry of a period of 30 days, as laid down u/s 140(2) of the Negotiable Instruments Act, 1881. At best, the complaint can be adjourned and further proceedings commenced after expiry of period of 30 days.

Counsel for the petitioner relied on a judgment of Kerala High Court in Viswandhan v. Surendran 1998(2) CCC 589. In view of the judgment of the Supreme Court, the judgment of the Kerala High Court cannot be relied on. Similarly, the judgment of the Madras High Court in P. V.R.S. Manikumar v. Krishna Reddy II (1999) BC 353 : IV (1999) CCR 37 : 1999(3) CCC 322 can also not be followed for the same reason. The judgment of the Supreme Court in Sadanandan Bhadran v. Madhavan Sunil Kumar, I (1999) BC 691 (SC) : VII (1998) SLT 157:111 (1998) CCR 238 (SC) : 1998 (4) RCR 90 relied on by Counsel for the petitioner is on the question that after cause of action has arisen as a result of first dishonour, the period of limitation will not be extended by second dishonour. In any case, the said-judgmentdoes not lay down the law contrary to the judgment of the Supreme Court in Narsingh Das Tapadia's case (supra).

Counsel for the petitioner has also referred to judgments reported in Jaya Chandran v. Baburaj. I (1999) BC 250 :1998(3) CCC 455 and Tomy Jacob Kattikkaran Vs. Dr. Thomas Manjaly and Another, for submitting that the return of notice on account of addressee not being available did not amount to service as the complainant had failed to examine the postman or the neighbour and that service of notice was a condition precedent. There is no dispute with this proposition of law, but the question is yet to be examined by the Trial Court. In the complaint, it has been stated that notice was refused intentionally and at this stage it cannot be assumed that the complainant will not be able to prove the said allegations. In any case the complainant can succeed only if the allegation, as stated, is proved.

In view of the above, there is no merit in this petition and the same is dismissed.