Sec 138 of negotiable instrument act
Gurpreet Singh Chauhan
(Querist) 22 March 2012
This query is : Resolved
Cheque is isued by person and same is presented for encashment but bounced due to insufficient funds. Notice sent to person through registered post but received back with endorsement by the postman that "due to several visits person could not find at home".
Is this valid service of notice under section 138 of Negotialbe instrument act, if so latest case law in this favour???
Gurpreet Singh Chauhan
(Querist) 22 March 2012
He did not refuse to take but he was not found at home. Actually he avoid the delivery intentionally.
Ajay Bansal
(Expert) 23 March 2012
Serve said notice to him personaly by hand.
H. S. Thukral
(Expert) 23 March 2012
The notice has been served if sent at the correct address. go ahead and file the complaint.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 23 March 2012
For presumption of service of notice there should be either 1) refusal 2) intimated and not claimed remarks should be there other wise it is not deemed service.
Shonee Kapoor
(Expert) 23 March 2012
It is not deemed service, if the parties have moved on.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
V R SHROFF
(Expert) 23 March 2012
General clause act, sec 27,
If notice is posted at last known true and correct address,
It is deemed served. So Service of Notice is complete.
You must have proof: Telephone connection, electricity, r card copy, drv licence, election card , anything that proves, he was residing at that address, when he issued cheque. He may refuse residence .You must prove it beyond doubt, it is his LAST KNOWN, TRUE& CORRECT ADDRESS. THATS ALL. .
There should be clear averment in Complaint that Complainant sent statutory notice on demand intimating dishonour of cheQue and accused was EVADING SERVICE.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 23 March 2012
Dear sir the NI act is legal fiction since it has special provisions which departs from general laws. Section 138 puts two conditions that part b) says issue of notice but again part c) says receipt of notice ; unless both conditions are complied no offense u/s 138 can be made out. PLEASE READ FROM ONE OF THE CITATION OF SUPREME COURT IN THIS MATTER.
Presumption raised in support of service of notice would depend upon
the facts and circumstances of each case. Its application is on the question
of law or the fact obtaining. Presumption has to be raised not on the
hypothesis or surmises but if the foundational facts are laid down therefor.
Only because presumption of service of notice is possible to be raised at the
trial, the same by itself may not be a ground to hold that the distinction
between giving of notice and service of notice ceases to exist.
H. S. Thukral
(Expert) 23 March 2012
Please go through Alavi Haji vs Palapetty Muhammed & Anr and K Bhaskaran cases decided by SC.
Presumption of service of notice will be there if averments are there that the notice was sent to a correct address. it will be upon the drawer to rebut the presumption thereafter.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 23 March 2012
I have quoted case OF SC after BHASKARAN CASE.
AND PLEASE READ THE THE PARA AGAIN WHICH DIFFERENTIATES BETWEEN SERVICE OF NOTICE AND RECEIPT OF NOTICE.
Presumption raised in support of service of notice would depend upon
the facts and circumstances of each case. Its application is on the question
of law or the fact obtaining. Presumption has to be raised not on the
hypothesis or surmises but if the foundational facts are laid down therefor.
Only because presumption of service of notice is possible to be raised at the
trial, the same by itself may not be a ground to hold that the distinction
between giving of notice and service of notice ceases to exist.
Only because presumption of service of notice is possible to be raised at the
trial, the same by itself may not be a ground to hold that the distinction
between giving of notice and service of notice ceases to exist.
V R SHROFF
(Expert) 23 March 2012
Important Supreme Court Judgments on Issue of Notice in 138 NI Act.
1] 2008 (1) SUPREME COURT OF INDIA
Criminal Appeal No. 1424 of 2007
Ms.Sarav Invetment Vs. Llyod
HELD: Dishonour of Cheque- Notice- Proofof Service- Held- The Notice was only required to be dispatched-
2] BOMBAY HIGH COURT
2007 (1) DSR 293
3] 2007(2) DCR 321
SUPREME COURT OF INDIA
Criminal Appeal No. 767 OF 2007
T IS VERY CLEAR PRESUMED RECEIVED NOTICE.
DEELIP APTE Vs. NELESH P. SALGAONKAR
Gurpreet Singh Chauhan
(Querist) 23 March 2012
Respected Seniors,
I have filed the complaint today after considering your valuable consults. I am very thankful to you all for introducing latest law in relation with 138 of Negotiable Instrument Act.
Thanks once again.
SAINATH DEVALLA
(Expert) 23 March 2012
Dear Chauhan,
Go through the citations given by Shri Harbhajanji,and Shri Shroffji.Nothing more to add at this stage.
V R SHROFF
(Expert) 23 March 2012
Finally case is decided on the basis of Who and How Defense Advocate, and Prosecution pull it in his Square through evidence, Arguments and supporting Citations.
The Fact is :"due to several visits person could not find at home". :: it proves he normally reside there and deliberately avoided service of notice, and no mistake on the part of Complainant, as no other alternative to serve him the notice: So it amount to proper service of notice !!""
A Smart one Wins. Fact remains same. What is proved is important.
Art of Defense Lawyer.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 23 March 2012
well this is storm in tea cup since we do not know that the defense will raise this issue at all.
Guest
(Expert) 24 March 2012
I endorse the views of S/Shri Shroff and Harbhajan Singh.
About citations, every case law is led entirely by the circumstances of individual cases and differs from case to case depending upon their own background, circumstances and facts, and has no common implication for each and every case.
