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srikanth kumar bandari (advocate)     26 April 2010

cheque bounce case

hello experts, i got a case of N.I.act . The facts of the case are my client obtained a loan from a finance company and at the time of obtaining loan my client signed agreement, issued several cheques by signing, without mention of dates, unfilled column of two lines of cheque leaf, subsequently my client committed defaulted in payment and the finance company issued notice u/s 138(b) of N.I.ACT and the report of legal notice says that "party left return to sender" in the criminal complaint the complainant has categorically mentioned notice has not been served upon accused and thereafter my client received summons on his business address and after receipt of the summons he appeared the hon'ble court, my questions are.

1)When there is no proof of service of  legal notice to the accused whether the criminal complaint is maintainable ? pl let me now the citations where complaint is not maintainable.

2)When the cheques are issued at the time of obtaining loan does it amount to legal enforceable debt?

3)when the complainant/finance company filled the dates and column lines with their rubber stamp of the company without the consent of the accused, does the complaint maintainable, ? ple provide authorities where complaint is not maintainable?

its urgent the state is coming up for complainant evidence.


 3 Replies

Rakesh Shekhawat (Advocate)     26 April 2010

In absence of an averment in the complaint that accused is evading service, presumption as to deemed notice cannot be raised.
2004(4) Criminal Court Cases 423 (Madras) S.S.Ummul Habiba, Proprietor, M/s.Alim Auto supplies Vs B.Rajendran

Presumption of service, Not available if notice is not addressed to correct address..
2003(2) Civil Court Cases 531 (Kerala) Suresh Kumar   Vs  Sasi


srikanth kumar bandari (advocate)     27 April 2010

thank you very much mr shekhawat sir for timely response. hope we will be in touch in the near future also. thank you once again.

Dharmesh Manjeshwar (Advocate/Lawyer)     01 May 2010

The said Complaint is bound to be dismissed .... as the Complainant has stated in his complaint that notice has not been served upon the Payer of the Cheque ...

Note that It is only when one receives the mandatory demand and does not pay the cheque amount within 15 days from the date of receipt of notice that an offence u/s - 138 N. I. Act is committed.

Since Complainant himself has said tthat notice has not been served upon the Payer .... then no offence has been committed .... U need not bothe rabout other issues ....

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