Notice under 138 of NI Act.

Battula Manikumari Apparao (Querist) 04 April 2011 This query is : Resolved
Hello members/experts,

One of client of my company cheque was bounced i sent the demand notice but i am doubt full that whether that notice will be served or not because that client is very cleaver he may bribe the post man and return that notice by any answer like no such person or wrong address please suggest me what to do in such case because notice is to be served from 15 days from the cheque gets bounced. If notice is not served what action i can take,please suggest.

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Arvind Singh Chauhan (Expert) 04 April 2011
Following case law may be help full-

Presumption of service of notice- Sent by registered post at his current business address as well as residential address- Accused knowingly avoiding service- Notice received back with endorsement that accused had gone out of station for quite some time- Service treated sufficient- UTT-NCC-2008- 707

Notice sent by post returned by accused as unclaimed- Notice is presumed to have been served –Cr.L.J.-1999-4606-B-S.C., AAR-2007-AP-17

Notice sent by post-returned to sender as Unclaimed-Due service of notice to be presumed only if prosecution/complainant establishes that notice sent on correct address-burden is on complainant-A.I.C.-2003-Vol-8-Ker-704.

Service of notice by registered post- complaint can’t be quashed on the ground that the accused didn’t received notice demanding money- Question whether notice was sent or not is purely question of fact- can be gone in to during trial-Cr.L.J.-1999-3644-A.P.

Notice issued but not served due to will full avoidance- magistrate taking cognizance and issuing process on the basis of constructive service of notice- No interference warranted-Cr.L.J.-2000-3614 A Orissa.

138 does not provide for mode of service of notice- As per Sec 94 notice may be given to dully authorized agent- not necessary to be registered post- A.C.C. 2005-Vol-52 -Sum-Page-1Kerla H.C.

Notice before complaint is mandatory but it’s service is not a ground of rejection. C.L.J.-2005-Vol-5-S.C.-109.

General Clause Act 27 -Notice sent by registered post on correct address- returned by saying accused was out of station- Requirement of Sec-138 sufficiently complied with- CLJ-2007(7)-SC-441.

Guest (Expert) 05 April 2011
Mr Arvind is right in his observation. However, as an additional measure, you may send one copy of the notice under certificate of posting to be granted by the P.O. You can also paste one copy of the notice at the door of his premises and have a photograph of the same at the door.

indrajit mukhopadhyay (Expert) 06 April 2011
I agree with both of them.

Advocate. Arunagiri (Expert) 06 April 2011
If the notice is sent to the last known address and gets returned by any valid reason, you can file the case.

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