Anil Agrawal (Retired) 31 August 2011

Cheque bouncing case

Is sending notice in 138 case mandatory? The SC says if summons are sent along with complaint and the accused still does not pay within 15 days, the notice is deemed to have been served.

Quoting relevant para from the judgement:

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 Section138 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 G.C. Act 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 inBhaskaran's case (supra), 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.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 767 of 2007 (Arising out of S.L.P. (Criminal) No. 3910 of 2006)

Decided On: 18.05.2007

Appellants: C.C. Alavi Haji
Vs.
Respondent: Palapetty Muhammed and Anr.

Hon'ble Judges:
K.G.Balakrishnan, C.J., R.V. Raveendran and D.K.Jain, JJ.

Reply Follow

1 Replies

Anil Agrawal (Retired) 31 August 2011

With reference to above, this is what a division bench of the Madras High Court has decided:

33. Section 138 (b) refers to issuance of notice to the drawer. Of course, while interpreting the said section, a notice to the drawer shall mean notice to the drawer, who has drawn the cheque in individual cases. But, when the offence is committed by the company, by virtue of Section 141, every person, who, at the time the offence was committed, was in charge of and responsible for the conduct of the business of the company, is presumed to be guilty of the offence. The word "drawer", as contained in Section 138 (b), cannot be restricted in the sense to the drawer of the cheque alone, but to those, who are presumed to be guilty of the offence, by virtue of Section 141, more particularly when such individuals are liable to be imprisoned for such an offence and their personal liberty is infringed thereon. As such, it is a violation of Article 21 of the Constitution of India.

37. In the light of what is stated above, the answer to the question is, statutory notice to every person, including the director, who is sought to be prosecuted, is mandatory.