suryapal singh chouhan (advocate) 20 July 2011

138 negotiable instrument act

notice u/s 138 sended. ---person refuse to take notice on 20/06/2011.-- from which date the period of 30 days count to file complaint ? i.e from 20/06/2011 or after 15 days from 20/06/2011. ? can we count 15 days time for payment ?

20-06-2011 refuse to take notice.

04-07-2011 fifteen days time for payment.

03-08-2011 date on or before which complaint filed.

Is it correct ?

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10 Replies

Sajeev Menon (Legal Consultant Dubai 00971 508836442) 20 July 2011

hi,

30 days counted from the date of the receipt or refusal to notice. thre after within 15days complaint to be filed. that means total 45days from the date of receipt or refusal of notice.

Solicitor Chirag Shah (Advocate & Solicitor) 20 July 2011

Mr. Singh,

The period should be counted from the date of receipt or refusal.

Date of refusal 20-06

15 days wl be from - 21-06 to 05-07

and thereafter after non payment 30 days from 05-07 will be up to 04-08.

regards,

Chirag Shah.

THANKACHAN V P (Advocate & Notary) 20 July 2011

No doubt total 45 days (15+30) WEF 21-06 as rightly pointed out by Chirag Shah.

Solicitor Chirag Shah (Advocate & Solicitor) 22 July 2011

Sir, Even if it is not claimed or no person found could be effected as good service if supported with good cases. There are some cases i came across while research on some related facts. But you will get the citations of searched properly. Regards, Chirag Shah.

THANKACHAN V P (Advocate & Notary) 22 July 2011

2007 (3) KLT 392

Hon'ble Mr. Justice K. Thankappan

Bhavani Auto Distributors v. Muraleedharan

Crl. A. No.567 of 1999

Decided on 1st June, 2007

Negotiable Instruments Act 1881, S.138 Proviso (b) -- Sending of notice in correct address of accused and return of same with endorsement “unclaimed” are sufficient for purpose of due compliance with S.138(b).

Sending of notice in the correct address of the accused and return of the same with endorsement “unclaimed” are sufficient for the purpose of due compliance with S.138(b) of the N.I. Act”. The burden of the appellant to prove that the notice was given to the 1st respondent was discharged, as it has come out in evidence that the postal authorities have given intimation of the notice to the 1st respondent to whom it has to be given. If so, it is the duty of the 1st respondent to show that the notice was not in the correct address or not served on him. (para. 7)

1994 (1) KLT 441; AIR 1966 SC 330;

(2001) 1 SCC 631 & 2002 (3) KLT SN 46 (C.No.64) Referred to

2005 (1) KLT 877

Hon'ble Mr.Justice J.M. James

Sheela v. Gopalakrishnan

Crl. A. No.643 of 2004.

Decided on 28th January, 2005.

Negotiable Instruments Act 1881, S.138 proviso (b) - Notice received by wife of accused when notice was sent in the correct address - Is sufficient notice.

The proof of sending of the notice in the correct last known address is sufficient compliance, as contemplated under S.138 of the Act. As the wife of the accused had admittedly received the notice, according to me, it is not at all necessary for the complainant to cite and examine the postman or the wife of the accused to show that she had been duly authorised by the accused to receive Ext.P4 notice. In the light of the evidence available on record, it is for the accused to rebut the evidence regarding the receipt of Ext.P4 notice. But he stated that he came to know of the fact of the payment of amount, and dishonour of the cheque only after going through Ext.P4 notice received by his wife. Hence, considering the evidence on record, I hold that the complainant has issued notice as contemplated the Act, and the same had been received by the accused. (para.10)

1994 (1) KLT 441

K.T. Thomas, J.

Madhu v. Omega Pipes Ltd.

Crl. M.C. No.1941 of 1993

Decided on 18th January, 1994.

Negotiable Instruments Act 1881, S.138-Meaning of the word "giving notice"- It cannot be said that there is no "giving" of notice until notice is delivered to the drawer of the cheque - If the payee has despatched notice in the correct address of the drawer reasonably ahead of the expiry of fifteen days, it can be regarded that he made the demand by giving notice within the statutory period.

In the above context it is useful to know that in clause (e) of the proviso the drawer of the cheque is given fifteen days from the date "of receipt of the said notice" for making payment. This affords clear indication that "giving notice" in the context is not the same as receipt of notice. Giving is the process of which receipt is the accomplishment. The payee has to perform the former process by sending the notice to the drawer in his correct address. If receipt or even tender of notice

@page-KLT442#

is indispensable for giving the notice in the context envisaged in clause (b) an evader would successfully keep the postal article at bay at least till the period of fifteen days expires. Law shall not help the wrong doer to take advantage of his tactics. Hence the realistic interpretation for the expression "giving notice" in the present context is that, if the payee has despatched notice in the correct address of the drawer reasonably ahead of the expiry of fifteen days, it can be regarded that he made the demand by giving notice within the statutory period. Any other interpretation is likely to frustrate the purpose for providing such a notice.

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE ) 22 July 2011

The main crux of the citation is that notice should have been sent to the correct address of the accused.

THANKACHAN V P (Advocate & Notary) 22 July 2011

Goes without sayin if notice is sent some other address- no notice at all

Solicitor Chirag Shah (Advocate & Solicitor) 22 July 2011

Rightly pointed out by Adv. Thankachan V P.

Good and useflu judjement.

Thanks.

Regards,

Chirag Shah.

harpreet singh (lawer) 26 July 2012

Good and usefull judjement. & pointed out by Adv. Thankachan V P...

Regards

Harpreet Singh

Rajeshmohan (PROPRIETOR) 30 May 2013

Dear Chirag Shah & Mr. Thankachan VP

cheque returned intimated by bank advice on 23/3/13, I sent lawyer notice on 19/4/13, served on 20/4/13. Can I file complaint on 3/6/2013. Pl tell me what is the last date of filing complaint. The delay because before Sunday the accused want to settle the money.

pl advice me sirs.