Claim of non receipt of notice under section 138

Social Worker

Claim of Non Receipt of Notice under Section 138

The accused filed an application for the dismissal of complaint at that time also he did not raise any contention that he did not receive the notices.  During trial, in Enquiry under Section 313, the accused says that he did not receive the notice of cheque return. In his defence the accused files an affidavit but does not lead any evidence or raise any contention that he did not receive the notices. At the time of Final Arguments the accused Lawyer again says that  he did not receive the notice

The complainant has exhibited the Regd Letter receipt of the notice in his evidence to which the accused advocate says it is fabricated!

What is the law or settled position in this respect ??

Any suggestions by Learned members!!

 
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CRIMINAL family PROPERTY topfreind@gmail.com

Apex court has declared in recent judgments that without service of notice there is no offense in cheque bounce case.

 

The moment the accused denies receipt  of notice it is the burden on the complainant to prove service of notice.

 

 
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practising Advocate

Dear Advocate Trilok ,

I shall be highly obliged if you provide the reference of the Apex Court Judgement . Thanking you.

 
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CRIMINAL family PROPERTY topfreind@gmail.com

Practically in most of the cheque bounce cases the APEX COURT  has gone into this issue. I am giving below few of them.

 

After having considered different provisions of law and the

judgment in K.Bhaskaran (Supra) as well as in M/s. Dalmia Cement (Bharat) Ltd. v. M/s. Galaxy Traders & Agencies Ltd., AIR 2001 SC

 

676, the Supreme Court observed as follows in paragraph 14.

“14, It is one thing to stay that sending of a notice

is one of the ingredients for maintaining the

complaint but is another thing to say that

dishonour of a cheque by itself constitutes an

offence.

 

 For the purpose of proving its case that

the accused had committed an offence under

Section 138 of the Negotiable Instruments Act,

the ingredients thereof are required to be proved.

 

What would constitute an offence is stated in the

main provision. The proviso appended hereto,

however, imposes certain further conditions

which are required to be fulfilled before

cognizance of the offence can be taken. If the

ingredients for constitution of the offence laid

down in the provisos (a), (b) and (c) appended to

Section 138 of the Negotiable Instruments Act are

intended to be applied in favour of the accused,

there cannot be any doubt that the receipt of a

notice would ultimately give rise to the cause of

action for filing a complaint.

 

 As it is only on receipt of the notice the accused at his own peril may refuse to pay the amount. Clauses (b) and (c)

of the proviso to Section 138 therefore must be

read together. Issuance of notice would not by

itself give rise to a cause of action but

communication of the notice would.” (emphasis

supplied)

 
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Advocate

As rightly observed by learned friend Mr. Trilok, if the accused persistently denies receipt of notice, the burden shifts on the complainant to prove the proper service of notice through the receipt of registered post or by acknowledgment card or courier receipt.   The proof of having sent the notice to the accused is established before the court, it will be deemed to be the service of notice of accused, it will not matter whether the accused signed the receipt or any one representing the accused signed the receipt or the notice has been returned undelivered citing reasons thereon.  

 
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Social Worker

My Fellow Brothers!

Let me put to rest the issue by drawing your kind attention to Section 27 in The General Clauses Act, 1897

27 Meaning of service by post. ".............................................................................................................................................................. 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"

Here the words "unless the contrary is proved" are of paramount LEGAL  importance

So the accused who claims non receipt is required to proved it

The onus of proving shifts to the accused and not the sender

 
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CRIMINAL family PROPERTY topfreind@gmail.com

It is not clear whether you are complaint or accused asking contrary questions.

 

Court room battles are never simple theory but tactics.

 

Many defense advocates miss the bus by not exploiting the basic flaws in the law.

 

The provision is the notice is to be properly addressed so you have to first prove the address was proper.

 

Another most important aspect is that the packet was containing the same notice. There are interesting Judgments on these aspects by Apex court and various high courts.

 
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Director

Respected Sir advocate Trilok,

"Another most important aspect is that the packet was containing the same notice. There are interesting Judgments on these aspects by Apex court and various high courts." please give the name of these judgments, if you have, this will really help all.

Thanks in advance,

 
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CRIMINAL family PROPERTY topfreind@gmail.com

Mr Madhu Mittal please read the portion of a High court Judgement in notice matter.

 

YOU CAN APPRECIATE THE LEGAL REASONING  in the given potion  which can be applied in any case.

 

14. As per Sections 67 and 45 of Indian Evidence Act,
“ordinarily, execution of a document is established by
proving the handwriting and signature on the document
under Section 67 of the Evidence Act. It is primarily proved
by examining the person who executed or created the
document by writing and signing on the same and when such
examination is not possible, execution can be proved by
examining a person who saw the document being written and
signed. In the absence of direct evidence relating to the
writing and signature in the document, execution may be
proved by examining a person who is qualified and
competent to express his opinion, as to the handwriting and
signature, by acquaintance or otherwise.”



15. In the present case, the said Advocate Shri Onkar
Batra who, as per the case of complainant issued the legal
notice to the accused ha snot been examined to prove this fact
that a legal notice was in fact issued to the accused regarding
dishonour of the cheque and regarding payment of the
amount within 15 days as per the Mandate of Section 138 of
Negotiable Instruments Act.

 
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Re : Alavi Haji vs. Palapetty Muhammed and Anr - By Hon'ble Supreme Court of India - Date of Judgment - 18.5.07

Dear Sir,

Held

The accused in the cases of Section 138 cheque bounces cannot take a stand that the Complainant has not served 15 days mandatory notice u/s 138, since even otherwise the accused within 15 days of receipt of summons from Criminal Court pay the amount to payee / beneficiary and seek closure of the complaint.

Issue

A short question which arises in this case is that whether the accused can take a stand that he was not served 15 days notice and escape the clutters of case filed under Section 138 of Negotiable Instruments Act.

Views and Comments of Supreme Court

The matter has been placed before the 3 Judge Bench of the Supreme Court, pertaining to the question of service of notice in terms of Clause (b) of proviso to Section 138 of the Negotiable Instruments Act, 1881 (N I Act).

The following question has been referred for consideration of the larger Bench :

In terms of the provisions of the N I Act, the necessary averments in regard to the mode and the manner of compliance of issuing 15 days notice is required to be made in the complaint. Whether in the absence of any averments in the complaint to the effect that the accused had a role to play in the matter of non-receipt of legal notice; or that the accused deliberately avoided service of notice, the same could have been entertained.

The Court has observed that cheque bounce case provisions were inserted in the N I Act with the object of promoting and inculcating faith in the efficacy of banking system and its operations and giving credibility to negotiable instruments in business transaction. The introduction of the said Chapter was intended to create an atmosphere of faith and reliance on banking system by discouraging people from not honouring their commitments by way of payment through cheques. Section 138 of the Act was enacted to punish those unscrupulous persons who purported to discharge their liability by issuing cheques without really intending to do so.

Apart from civil liability, criminal liability is sought to be imposed by the said provision on such unscrupulous drawers of cheques. However, with a view to avert unnecessary prosecution of an honest drawer of the cheque and with a view to give an opportunity to him to make amends, the prosecution under Section 138 of the Act has been made subject to certain conditions. These conditions are stipulated in the proviso to Section 138 of the Act. Under Clause (b) of the proviso, the payee or the holder of the cheque in due course is required to give a written notice to the drawer of the cheque within a period of thirty days from the date of receipt of information from the bank regarding the return of the cheque as unpaid. Under Clause (c), the drawer is given fifteen days time from the date of receipt of the notice to make the payment and only if he fails to make the payment, a complaint may be filed against him.

The issue with regard to interpretation of the expression 'giving of notice' used in Clause (b) of the proviso is no more res integra. In K. Bhaskaran v. Sankaran Vaidhyan Balan and Anr., the said expression came up for interpretation. Considering the question with particular reference to scheme of Section 138 of the Act, it was held that failure on the part of the drawer to pay the amount should be within fifteen days 'of the receipt' of the said notice. 'Giving notice' in the context is not the same as 'receipt of notice'. Giving is a process of which receipt is the accomplishment.

It is for the payee to perform the former process by sending the notice to the drawer at the correct address and for the drawer to comply with Clause (c) of the proviso. Emphasizing that the provisions contained in Section 138 of the Act required to be construed liberally, it was observed thus :

If a strict interpretation is given that the drawer should have actually received the notice for the period of 15 days to start running no matter that the payee sent the notice on the correct address, a trickster cheque drawer would get the premium to avoid receiving the notice by different strategies and he could escape from the legal consequences of Section 138 of the Act. It must be borne in mind that Court should not adopt an interpretation which helps a dishonest evader and clips an honest payee as that would defeat the very legislative measure. The context envisaged in Section 138 of the Act invites a liberal interpretation for the person who has the statutory obligation to give notice because he is presumed to be the loser in the transaction and it is for his interest the very provision is made by the legislature. The words in Clause (b) of the proviso to Section 138 of the Act show that payee has the statutory obligation to 'make a demand' by giving notice. The thrust in the clause is on the need to 'make a demand'. It is only the mode for making such demand which the legislature has prescribed. A payee can send the notice for doing his part for giving the notice. Once it is dispatched his part is over and the next depends on what the sendee does.

This Court held

We cannot also lose sight of the fact that the drawer may by dubious means manage to get an incorrect endorsement made on the envelope that the premises has been found locked or that the addressee was not available at the time when postman went for delivery of the letter. It may be that the address is correct and even the addressee is available but a wrong endorsement is manipulated by the addressee.

In such a case, if the facts are proved, it may amount to refusal of the notice. If the complainant is able to prove that the drawer of the cheque knew about the notice and deliberately evaded service and got a false endorsement made only to defeat the process of law, the Court shall presume service of notice.

This, however, is a matter of evidence and proof. Thus even in a case where the notice is returned with the endorsement that the premises has always been found locked or the addressee was not available at the time of postal delivery, it will be open to the complainant to prove at the trial by evidence that the endorsement is not correct and that the addressee, namely the drawer of the cheque, with knowledge of the notice had deliberately avoided to receive notice. Therefore, it would be pre- mature at the stage of issuance of process, to move the High Court for quashing of the proceeding under Section 482 of the Code of Criminal Procedure.

Concluding remarks of the Supreme Court

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. In the instant case, the complainant issued lawyer's notice and the same was returned saying that the accused was 'out of station'. We are of the view that on facts in hand the requirements of Section 138 of the Act had been sufficiently complied with and the decision of the High Court does not call for interference.

Judgment

For the reasons aforementioned, we do not find any merit in this appeal. It is dismissed accordingly but with no orders to costs in the circumstances.

 
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