Notice under sec 138.

D.G. Mohan (Querist) 12 June 2012 This query is : Resolved
If a notice under sec 138 is not received by the party for any reason, can we file the case in court.

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A V Vishal (Expert) 12 June 2012
The General Clauses Act, 1897

27. Meaning of service by post.-

Where any 1(Central Act) or Regulation made after the commencement of this Act authorizes of requires any document to be served by post, where the expression "serve" or either of the expressions "give" or "send" or any other expression in used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.

COMMENTS

(i) A notice when required under the statutory rules to be sent by ‘registered post acknowledgement due' is instead sent by ‘registered post' only, the protection of presumption regarding serving of notice under ‘registered post' under this section of the Act is neither tenable nor based upon sound exposition of law; United Commercial Bank v. Bhim Sain Makhija, AIR 1994 Del 181.

(ii) Where a notice is sent by the landlord by registered post and the same is returned by the tenant with an endorsement of refusal, it will be presumed that the notice has been served; Jagdish Singh v. Natthu Singh, AIR 1992 SC 1604.

SAINATH DEVALLA (Expert) 13 June 2012
Even if the notice is not received or rejected you can file a case u/s 138 NI Act,within the stipulated period.

R Trivedi (Expert) 13 June 2012
The problem is the NI Act, which clearly mentions that "within fifteen days of receipt of notice" cause of action arises.

So if the accused raises this issue, you have to substantiate that the notice was sent to proper address (last known) and all the efforts were made to ensure that it reaches the accused. Idea behind this notice is that somehow the information must reach the accused. If the notice is still in limitation period (with respect to case filing), use all the known sources, like Email, Fax, Courier, UPC to safeguard your interest.