valliboyana venkata naga raju (ADVISOR) 28 May 2012

Negotiable instrumensts act

U/s 138 of NI Act party did not received notice. He directly received summons from court. He is admiting his liability and drawn DD infavor of Complainant. But complainant did not accepted the same and he want to contest the matter in the court of law. Is there any judgement in favor of accused

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6 Replies

V R SHROFF (Sr. ADVOCATE Bombay High Court Mob: 9892432152) 28 May 2012

Why he accept liability??.

In all case, it Notice served canot be proved, complainant loose his case. No cause of action arise for want of notice.

C. P. CHUGH (Practicing Lawyer) 28 May 2012

He did not received notice cannot be surely inferred as No notice was served upon him. However it is not clear why he has admitted his liability. Still all is not lost and he should contest the complaint on merits.

B.K.GUPTA... (ADVISOR) 30 May 2012

The requirement of giving of notice is mandatory. If no notice making a demand for payment is served upon the drawer within 30 days from the date of dishonour of cheque, a complaint is not maintainable unless the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period.

Notice means a notice in writing.

A postal acknowledgement due containing the signature of the accused is proper proof of service of the notice on the addressee shown in the postal acknowledgement.

When a notice is returned by the sender as unclaimed such date would be the commencing date in reckoning the period of 15 days. 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.

The notice need not necessarily be by registered post only. It can be sent by a telegram, fax or by a letter as well. However it is preferable to send the notice by registered post, as that is clear evidence of service.

dibyendu (Adfvocate) 30 May 2012

If he is admitting his liablity then why he would contest?

MANOJ KUMAR JAIN (LAWYER -JOB ) 07 June 2012

Yes, there is a judgment which acknowledge the compliance of notice u/s 138 by the Accused , if same is not served to accused before filing the case and the accused brought DD against cheque amount on his first appearance after receiving summon as in your case . The court can not ignore the object of Notice which gives another chance to the drawer of the cheque to make up for his default under this special act.

Further more , This is a summary trial & the Hon'ble high Court of Delhi has given a specific direction to all MM to issue summon along with suggestion to accused to appear with application to compound the case , if he intends to make payment for the cheque in dispute on first appearance . It is all only to reduce the pendency of litigation u/s 138 N.I.Act .