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Amarjeet yadav (Advocate)     05 November 2008

compliant u/s 138 of NI act

hi everybody,

In one of my case the opposite party intentionally hasn't recived the legal notice and it was returned back. now plz guide me will i face any problem when i file complaint us 138 of NI act. i think i can file the complaint. plz support ur answers with any judgement in relation of this which favour that the receving of notice by the opp. party is not mandatory or so? plz i need it urgent


 4 Replies

SARITA SHIVARAMAN (service)     05 November 2008

Mr. Yadav

You can file the complaint, offcourse, if the otherparty intentionally has not received it, the time will be counted from the date the Notice is returned to you.

( Sarita Shivaraman )

K.C.Suresh (Advocate)     06 November 2008

You can file the complaint in time. Postal authorities might have noted the reasons of the return in the artical itself. You need to compy the procedure. The rest is on the respondent to explain.

G.G.Shaikh Advocate M:9898038990 (lawyer)     14 November 2008

 it is  not mendatory that notice is received by the opposite party but u have to give notice is a mendatory.then after the cause of action is arrise.if notice not served to opposite party u can file a case against the opposit party and court can issue process against opposit NI ACt it is mendatory to give notice to opposite party but it si served or not served is other thing .

G.G.Shaikh Advocate M:9898038990 (lawyer)     14 November 2008

Section 138—Dishonour of cheque—Service of notice—Notice by registered post, returning unserved—Cause of action for prosecution—Offence complete on failure to pay—Limitation commences from the date of return of notice as unclaimed as notice is presumed to have been served unless such presumption is rebutted by accused.

On the part of the payee he has to make a demand by "giving a notice" in writing. If that was the only requirement to complete the offence on the failure of the drawer to pay the cheque amount within 15 days from the date of such "giving", the travails of the prosecution would have been very much lessened. But the legislature says that failure on the part of the drawer to pay the amount should be within 15 days "of the receipt" of the said notice. It is, therefore, clear that "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 in the correct address.

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 despatched his part is over and the next depends on what the sendee does.

In this connection a reference to Section 27 of the General Clauses Act will be useful.

No doubt Section 138 of the Act does not require that the notice should be given only by "post". Nonetheless the principle incorporated in Section 27 of General Clauses Act profitably be imported in a case where the sender has despatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such non-service. Any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to the strategy of subterfuge by successfully avoiding the notice.

Thus when a notice is returned by the sendee as unclaimed such date would be the commencing date in reckoning the period of 15 days contemplated in Clause (d) to the proviso of Section 138 of the Act. Of course such reckoning would be without prejudice to the right of the drawer of the cheque to show that he had no knowledge that the notice was brought to his address. In the present case the accused did not even attempt to discharge the burden to rebut the aforesaid presumption.

K. Bhaskaran v. Sankaran Vaidhyan Balan and another, 1999 CrLJ 4606 : 1999 AIR (SC) 3762 : 2000(1) Mah LJ 193 : 2000(1) MPLJ 1 : 2000(1) Pun LR 113 : 1999(3) Raj LW 470

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