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TANMOY (director)     29 October 2009

DEFECTIVE 138 NOTICE

Cheque was bounced for 'insufficient funds'. Notice was issued but while writing notice by mistake it was written that cheque was bounced for 'Refer to Drawer'. The cheque was presented by the complainant in SBI but while writing notice it was mentioned that the cheque was presented in ICICI. Now it is a completely defective notice.

Complain case was filed in judicial magistrate court without mentioning this mistake. Cognizance taken. Is it possible to quash the case by High Court? Please give me some citations where a case was quashed due to defectiveness of above-mentioned type in notice.



Learning

 13 Replies

Raj Kumar Makkad (Adv P & H High Court Chandigarh)     29 October 2009

Definitely such complaint is liable to be dismissed as vital evidence is against the pleadings of the complaint and notice is entirely defective. Various citations on this point are available in almost all journals/reporters.

TANMOY (director)     29 October 2009

Sir, I can find out only one citation

2007(1) Civil Court Cases 262 (Kerala)

Can you please give some more citations? please

vivek dhavalikar (advocate high court.)     29 October 2009

it is not legal error it can be said only a factual error. and thus error can be cured by filing affidavit. no, honble high court may not interfere.

1 Like

Kiran Kumar (Lawyer)     29 October 2009

even i agree with Mr. Vivek,

 

it is a slight error that can be cured, moreover the purpose of sending notice is to make the accused aware of default....complaint can not be quashed or notice cannot be invalidiated on this ground only.

 

the fact to be considered is the cheque bounced and through notice this fact is brought to the knowledge of payee.

 

m giving two citations, not exactly on the same point but sufficient enough for understanding the concept;

Abdul Rehman M. Mulgand v/s Mohammad Hashan Mulgand and anr. 2006(2) CCC 749 (bombay); 2006(2) Criminal court cases 1092 (bombay)

 

Sri Krishna Bhupati v/s Chandana Constructions 2004 (2) CCC 86 (karnataka); 2004(2) Criminal court cases 47 (karnataka)

TANMOY (director)     29 October 2009

Mr. Kiran, I would like to call you and talk to you. Will you please give me your mobile number?

Vedaa Mirazkar (98457 02459) (Lawyer)     29 October 2009

Actually, it will be difficult to ascertain whether legal error or factual error.  Most-often, such complaints are liable to be dismissed.

Kiran Kumar (Lawyer)     29 October 2009

Sir Ji, my cell No. is already there in my profile.

 

otherwise for your conveniece m writing it here as well 09814303538

 

 

Sanjeev Kuchhal (Publishers)     30 October 2009

Sir,

The Bombay Citation mentioned above though on the similar grounds but the mistake was in relation to the number of cheque as well as the date thereof. The Hon'ble High refused to dismiss the complaint holding that the necessary and material particulars regarding the bank's name and the amount of the cheque was correctly mentioned.

However in the Judgment of Kerala Court reported in 2006 CriLJ 4356 (Aniyan Thomas Chacko Vs. Thevarvelil Bankers) cheque was actually drawn on the State Bank of Travancore but in the notice sent by the counsel, there was a crucial, grave and vital error in describing the cheque as one issued by the Indian Overseas Bank. High Court held that notice being a defective and unsustainable notice, the cause of action cannot be said to commence with such a notice.

 

1 Like

TANMOY (director)     30 October 2009

In this case the cheque was presented for collection to SBI bank but in the notice it was written that the cheque was presented to ICICI bank. Is it quasable or not?

K.S. Phani Bhaskar (ADVOCATE)     31 October 2009

I strongly agree with Mr. Vivek's point, a cheque bounce case is not so easily quashed, the point of defective notice can be proved only after the conclusion of the trial, as such the complaint cannot be quashed at the threshold stage itself.

We should also verify the citation referred by Mr.Sanjeev, 2006 CriLJ 4356, though the point of issuance and presentation of the cheques differs, the point we got to see is the DEFECTIVE NOTICE - WHETHER COMPLAINT IS MAINTAINABLE OR NOT.

 

vivek dhavalikar (advocate high court.)     31 October 2009

no

bhupender sharma (head)     03 November 2009

Mr. Tanmay , There is lot of difference between the illegality and irregularity.  It is settled law that the illegality cannot be cured rather the lrregularity. It is to be judged after the leading the evidence by the parties. More so the said confusion that the said cheque was presented in the SBI or ICICI it depends and the same can be rectified in the presummoning evidence. (Bhupender Sharma) Adv.

Adinath@Avinash Patil (advocate)     18 December 2009

IT IS FACTUAL ERRORE, CHEQUE  RETURNE/DISHONOURED IS IMPORTANTS HENCE COMPLAINT UNDER S.138 IS MAINTAINABLE. COURT WILL NOT DISMISS COMPLAINT ONLY GROUND OF MISTAKE OF NOTICE.


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