SIVAKUMAR versus NATARAJAN

Citation: [2009] 9 S.C.R. 386 · Decided: 15-05-2009 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

Judgment (excerpt)

(2009] 9 S.C.R. 386 
• 
A 
SIVAKUMAR 
v. 
NATARAJAN 
(Criminal Appeal No. 1077 of 2009) 
B 
MAY 15, 2009 
[S.8. SINHA AND ASOK KUMAR GANGULY, JJ.] 
NEGOTIABLE INSTRUMENTS ACT, 1881: 
c 
Section 138 - Complaint Petition - Appellant convicted 
by Trial Court - Appeal as well as Revision Application 
dismissed - On appeal, Held: Indisputably the notice was 
issued on the 31st day and not within 30 days from the date 
.\ 
·of receipt of information from the bank - Since respondent 
D himself backed out from the settlement between the parties, 
he cannot be pennitted to take a different stand - Since the 
civil liability of the appellant stands admitted, the sum 
received by the respondent need not be refunded -
Constitution of India, 1950, Article 142. 
., 
E 
LEGAL PRINCIPLES: 
~ 
Principles of 'Estoppel', 'Waiver' - Applicability of. 
In this appeal relating to dishonour of cheque and 
F subsequent complaint under Section 138 of the 
Negotiable Instruments Act, 1881, the core question that 
arose for consideration was as to whether the notice was 
issued within the stipulated period of thirty days from the 
date of receipt of intimation of the dishonour of cheque. 
• 
G 
Allowing the appeal, the Court 
·-
HELD: 1. Both clauses (a) and (b) of the proviso 
appended to Section 138 of the Negotiable Instruments 
Act employed the term "within a period". Whereas clause 
H 
386 
SIVAKUMAR v. NATARAJAN 
387 
-{ 
... 
), 
(a) refers to presentation of the cheque to the bank within 
A 
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. [Para 11] (394-B-C] 
B 
( 
Mis. Harman Electronics (P) Ltd. & Anr. v. Mis. National 
y 
Panasonic India Ltd. 2008 (16) SCALE 317, referred to. 
2. The Parliament advisedly did not use the words 
~from the date of receipt of information' in Section 138 of c 
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 b 
.. 
other period of time, to use the word "to". The departure 
~ 
made from the provisions of Section 9 of the General 
Clauses Act by the Parliament, therefore, deserves 
serious consideration. [Para 11] (394-0-F] 
3. Indisputably, the notice was issued on the 31st day 
fE· 
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 
F 
to be complied with by the respondent for the purpose 
,.., 
of maintaining a complaint petition against the appellant. 
[Para 12) (394-G] 
Munoth Investments Ltd. v. Puttukola Properties Ltd. and 
Another (2001) 6 SCC 588, relied on. 
G 
-:"" 
Kera/a High Court in K. V. Muhammed Kunhi v. P. 
Janardhanan 1998 Crl. L.J. 4330 and K. C. Nanu v. N. 
Vijayan and Anr. 2008 (1) KLJ 327, approved. 
H 
-
388 
SUPREME COURT REPORTS 
(2009] 9 S.C.R. 
J. 
"""'"
~
A 
4. 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. [Para 15] [396-F] 
B 
5. In any event, the respondent himself has backed 
out from the settlement. He, therefore, cannot be 
y 
permitted· to take a different stand. [Para 15] [396-G] 
6. ~'laving regard to ·the facts and circumstances of 
c the case, this Court, in exercise of its jurisdiction under 
Article 142 of the Constitution of India, directs that as the 
civil liability of the appellant stands admitted, the sum 
received by the respondent need not be refunded. [Para 
16] [396•H; 397-A] 
D 
Case Law Reference: 
2008 (16) SCALE 317 referred to 
Para 10 
(2001) 6 sec 588 
relied on 
Para 12 
·E 
1998 Crl. L.J. 4330 
approved 
Para 13 
2008 (1) KLJ 327 
approved 
Para 13 
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal 
~ 
No. 1077 of 2009. 
F 
Fromthe Judgment & Order dated 03.02.2007 of the High 
, 
Court of Judicature of Madras, Madurai Bench in Criminal 
Revision no. 849 of 2005. 
G 
S. Mahendran for the Appellant. 
8. Balaji, D. Kumaran and S

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