138 ni act cases


I want to know that, a party has 2 years old blank cheque which he has produce in bank, and bank account is closed. Can he file 138 case on the proprietor of the firm.

 
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Retired

Does this mean that notice u/s 138(b) is not required and complaint with summons recd will be treated as notice?

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1190 OF 2008

[Arising out of SLP (Crl.) No. 541 of 2008]

Subodh S. Salaskar …Appellant

“17. It is also to be borne in mind that the requirement of giving of notice is a clear

departure from the rule of criminal law, where there is no stipulation of giving of a notice

before filing a complaint. Any drawer who claims that he did not receive the notice sent by

post, can, within 15 days of receipt of summons from the court in respect of the complaint under

Section 138 of the Act, make payment of the cheque amount and submit to the court that he

had made payment within 15 days of receipt of summons (by receiving a copy of complaint

with the summons) and, therefore, the complaint is liable to be rejected. A person who

does not pay within 15 days of receipt of the summons from the court along with the copy of

the complaint under Section 138 of the Act, cannot obviously contend that there was no

proper service of notice as required under Section 138, by ignoring statutory presumption

to the contrary under Section 27 of the and Section 114 of the Evidence Act. In our

view, any other interpretation of the proviso would defeat the very object of the legislation.

 As observed in Bhaskaran case if the “giving  of notice” in the context of Clause ( b ) of the

proviso was the same as the “receipt of notice” a trickster cheque drawer would get the

premium to avoid receiving the notice by adopting different strategies and escape from

 

 

legal consequences of Section 138 of the Act.”

 
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