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oral notice in ni act

Querist : Anonymous (Querist) 09 July 2011 This query is : Resolved 
respected sir,
i want to know that after dishonor of cheque oral notice given by the complainant to the accused it is effected notice in the eye of law

prabhakar singh (Expert) 09 July 2011
NO,NOT at all
Advocate Bhartesh goyal (Expert) 09 July 2011
Notice must be in writing.oral notice has no significance in eye of law in N.I Act cases
PJANARDHANA REDDY (Expert) 09 July 2011

Supreme Court of India
M.D.Thomas Vs. P.S. Jaleel & Anr. on 13 April, 2009
Author: ......................J.
Bench: B.N. Agrawal, G.S. Singhvi
(Arising out of S.L.P. (Crl.) No.7828 of 2007)
M.D. Thomas ...Appellant(s)
P.S. Jaleel and Anr. ...Respondent(s)
Leave granted.
Heard learned counsel for the parties.
The Trial Court, upon conclusion of the trial, acquitted the appellant of the charge under Section 138 of the
Negotiable Instruments Act, 1881, [for short `the Act']. On appeal by the complainant, the High Court set
aside the order of acquittal, convicted the appellant and sentenced him to undergo imprisonment till the rising
of the Court and directed to pay the sum of rupees one lakh twenty thousand to the complainant; in default, to
undergo further simple imprisonment for a period of three months. Against the said order, present appeal has
been filed by special leave. Learned counsel for the appellant argued that his client's conviction is liable to be
set aside because before filing complaint, the respondent did not serve upon him notice as per the requirement
of Clause (b) of proviso to ....2/-
Section 138 of the Act. He submitted that service of notice on the appellant's wife cannot be treated as
compliance of the mandate of law. Learned counsel for respondent No.1 did not dispute that the notice issued
by his client was, in fact, served upon the appellant's wife but argued that this should be treated as sufficient
compliance of the requirement of giving notice of demand. Section 138 deals with the dishonour of cheque for
insufficiency, etc., of funds in the accounts of the person who draws the cheque and lays down that such
person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of
this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which
may extend to twice the amount of the cheque, or with both. Proviso to Section 138 specifies the conditions
which are required to be satisfied before a person can be convicted for an offence enumerated in the
substantive part of the section. Clause (b) of the proviso to Section 138 cast on the payee or the holder in due
course of the cheque, as the case may be, a duty to make a demand for payment of the said amount of money
by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by
him from the bank regarding the return of the cheque as unpaid. In the present case, the notice of demand was
served upon the wife of the appellant and not the appellant. Therefore, there is no escape from the conclusion
that complainant-respondent had not complied
M.D.Thomas Vs. P.S. Jaleel & Anr. on 13 April, 2009
Indian Kanoon - 1
S. Bharath (Expert) 09 July 2011
Proviso [b] to Section 138 expressly states that the notice has to be in writing.
PJANARDHANA REDDY (Expert) 09 July 2011
with the requirement of giving notice in terms of Clause (b) of proviso to Section 138 of the Act.
Unfortunately, the High Court overlooked this important lacuna in the complainant's case. Therefore, the
conviction of the appellant cannot be sustained. In the result, the appeal is allowed. The impugned order is set
aside and the order of acquittal passed by the Trial Court is restored.
New Delhi,
April 13, 2009.
DEFENSE ADVOCATE.-firmaction@g (Expert) 09 July 2011
Please post complete citaion Mr Reddy.
S. Bharath (Expert) 09 July 2011
@Your Advocate: The citation is (2009) 14 SCC 398
DEFENSE ADVOCATE.-firmaction@g (Expert) 09 July 2011
Thank you sir, this is imp citaion pl post it in the files section for benefit of all.
SANJAY GUPTA (Expert) 10 July 2011
It has been clearly mentioned in the section 138 N.I.Act regarding the issuance of the notice of a dishonoured cheque.

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