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Robin (Administrator)     11 June 2014

Legal notice may return as door locked.. intimation served

Sir

I was issued a cheque dated 15th may 2014 for rupees 15000.00 and the same was presented at indian bank, Shadnagar branch. The cheque was of OBC, kukatpally.

The cheque returned to me on 23rd by the bank with the reason in sufficient funds.

I sent a legal notice on 5th June, and the India post tracking shows as undelivered, door locked, intimation served.

When contacted the postman, he said that the party will be available only in night (10pm to 6 am) and the postman is able to go there only after 11am to 2pm.

Mobile number of the drawer is switched off now.

It is sure that the notice may returned to me  un served within 3 days.

What steps I can take in this case? Will filing a case with police under 420 help me?

Please advice...



Learning

 24 Replies

Laxmi Kant Joshi (Advocate )     11 June 2014

Contact to an expert local lawyer he will send the notice of 138 NI act and he knows the tact how it can be served , you can also file 420ipc against the culprits in the police station how they had cheated you and grabed your money .
1 Like

Rama chary Rachakonda (Secunderabad/Telangana state Highcourt practice watsapp no.9989324294 )     11 June 2014

 Sent it through Registered AD post. Keep a copy of receipt of post office as well as notice. 

You can send personally send the legal notice without lawyer but it is advised that draft the notice meticulously, in such a way that it is not lengthy and containing all the material contents related to the cause. The date of sending is the evidence of record for treated it as deemed to sent. 

1 Like

Swastik Nath (Freelance Lawyer)     11 March 2015

You can file case under section 138 and a criminal proceeding will take place and the court will direct the appellate authority to find and produce such person.

R Trivedi (advocate.dma@gmail.com)     13 March 2015

Swastk nath,

 

Court will direct the appellate authority....you mean trial magistrate will direct the Session Judge or High Court Judge ??

 

Why give such beautiful advise, beautiful things should be kept, not to be shared.

Bhaskaran Advocate (Lawyer)     15 September 2015

For Swath Nath probably Appallate authority he means police.   In the matter at question if the notice is posted to a correct address and is returned door locked, intimation served it is constitued as deemed served.  Complaint under 138 maintainable.

On the other hand if the address on postal cover is wrong and then the postman redirects the letter to another address which they know the party is residing and then if it returned as door locked, intimation served then notice is constituted as not a deemed served.   Complaint under 138 may fail.

BHRIGU DATTA 9475352677 (PRIVATE PRACTICE)     15 September 2015

according to your descripttion the latter has been properly served it is good service . so you should file case u/s 138 NI act. but unfortunately 30 days over so it is now difficult to file . Because limitation is over.

Dr. MPS RAMANI Ph.D.[Tech.] (Scientist/Engineer)     16 September 2015

It is presumed that the legal notice was sent by Registered AD. If so it is immaterial whether the addressee receives the notice or it is received back undelivered with postal remarks for not delivering. The legal requirement of issuing notice has already been served. You can proceed further and file your complaint subject to mandatory time limit requirements.

LAXMINARAYAN - Sr Advocate. ( solve problems in criminal cases. lawproblems@gmail.com)     17 September 2015

There are lots of misconceptions about service of notice and its preumption under GENRAL CLAUSES ACT.

It is reguttable presumption and accused particularly in cheque bounce cases have this as a golden opportunity to come out of the case on this point alone.

 

BOMBAY HC after analysing various SC and HC judgments made following observations while setting aside the Dist court judgment which had reversed the lower court Judgment  on presumed service of notice.

 

 

5. It is more than clear, the presumption under Section 27 of General Clauses Act is rebuttable and it will not

in all situation will be of a final stroke to the defence of the adversary. Postal notice is not served to the

addressee.

 

 The presumption that the usual course of the post was followed through evidence of the postman

would not be available, if it is shown that the service was interrupted by disturbances. It was established by the ------ that the common course of business was not followed while effecting service upon him by the

concerned postman. The postman did not produce any corresponding entries in the delivery register

illustrating that there was an acknowledgement from Mukesh.

 

 Such event has been materially considered by

the learned Civil Judge. The proof of service of notice was beyond pleadings.

 

Dr. MPS RAMANI Ph.D.[Tech.] (Scientist/Engineer)     20 September 2015

That Section 27 of the General Caluses Act is rebuttable is not relevant here. One has to look at the essence of the law and  not be mindlessly read and come to conclusions. Ideally judges should be like the Hrishis of yore and their pronoucements gospels. Unfortunately that is not true. Let me reproduce NI-Section 138  here:

138. Dishonour of cheque for insufficiency, etc., of funds in the accounts 

Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both:

PROVIDED that nothing contained in this section shall apply unless-

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier.

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

Sub-section (b) requires the holder in due course of the cheque to make a demand for payment on the drawer of the cheque before going to court against him. Why so?

It is possible that the bouncing of the cheque was due to some inadvertent error or oversight on the part of drawer of the cheque. He should be given an opportunity to correct himself before the Complaint can go to court.

Now for one reason or other the demand notice does not reach the prospective accused. What should the Complainant do? Has he got to give up and resign to his fate? Certainly not. He can go to court and file his compalint.

The court will ask the accused to explain his stand. He can then successfuly or otherwise rebut the presumptions under Section 27 of the General Clauses Act. But will that alone absolve him of his liability under Section 138?  He did not receive the demand notice. But now he knows that a demand notice was sent and what that demand notice contained. What should he do? Can he refuse to pay the amount and get away with it. If he refuses to pay even now he has to bear the consequences. If he agrees to pay now but the Complainant claims his pound of flesh under Section 27 of the General Clauses Act, the court will decide.

Now let us see what the Complainant could have done. His notice diappeared like a stone dropped in a well or it was returned in due course with the remarks of the postman "door locked" or any other reason. What should he do? Should he resign to his fate on the ground that Section 27 is rebuttable or go on sending notice after notice until the other party receives one?  No one will advise him so.

Leanrned Sr. Advocate Laxminarayan has not explained under what context the Bombay HC made those observations.

The offence under Section 138 is causing the bouncing of the cheque and not refusing or avoiding the  receipt of the Registered notice.

The case is one year old. Whatever we say here is only academic.

 

LAXMINARAYAN - Sr Advocate. ( solve problems in criminal cases. lawproblems@gmail.com)     20 September 2015

You may have to attend court and follow a cheque case to understand the implictions.

 

And it is not the duty of accused to show what complainant should have done.

 

 

Unless legal service of notice is not proved the cheque case will not sustain.

Even service on other mamber of fai,ily is not legal, read what APEX COURT HAS TO SAY.

 

In the present case, the notice of demand was served upon the wife of the appellant and not the appellant. Therefore,

there is no escape from the conclusion that complainant-respondent had not complied with the requirement of giving notice in terms of Clause (b) of proviso to Section 138 of the Act. Unfortunately, the High Court overlooked this important lacuna in the complainant’s case.

 

Therefore, the conviction of the appellant cannot be sustained.

 

In the result, the appeal is allowed.

 

  • The impugned order is set aside and the order of acquittal passed by the Trial Court is restored.

 

SUPREME COURT New Delhi, , 2009.

..

Dr. MPS RAMANI Ph.D.[Tech.] (Scientist/Engineer)     21 September 2015

General Clauses Act is more than a 100 years old. Section 27 may also be that old. I may be corrected. Was there any occasion for the Supreme Court or has ever the Supreme Court negated  Section 27 in this manner before?

I never said that the accused should advise the Complainant.

I have almost  never attended court proceedings. My mind is not warped by court pronoucements. But I carefully read court judgments and form my own opinion. I give below a couple of------ judgments of the Supreme Court. I have left a blank because I do not get a proper adjective.

1. There was a case before the Supreme Court ONGC  vs Surat Co-op. Society.  The ONGC Act says that ONGC can lay underground pipelines even through private premises to carry minerals. They wanted to lay a water pipelines through the premises of the Society. The Society objected on the ground that water was not a mineral. The case went before the Supreme Court. The judges looked into Oxford dictionary for the definition of what is a mineral. They got the definition a mineral is an inorganic material occuring in nature. Water is an inorganic material occuring in nature. So ONGC can lay the pipeline. Now if we accept the definiton given by the court ONGC can carry water through the pipeline. But it cannat carry oil through the same pipeline or another similar pipeline. It is because oil is an organic substance. The correct definiton of a mineral is " a mineral is a substance or a collection of substances occuring in nature in fixed quantities and it gets depleted on extraction by man. Surface water drawn from any source gets annually recharged through the natural cycle. Hence water is not a mineral. There are waters in confined acquifers confined through geological periods. They can be called mineras or mineral waters.The Judges were wrong. I shall say this before any court. Let them charge me with contempt of court. I shall continue.

Madhu Mittal (Director)     22 September 2015

Respected Sirs,

As held by Rajasthan High Court in a case Bhagwati Kumar Gupta vs. State of Rajasthan & Anr. (21.12.2012 - RAJHC) at para 6:

6. In view of the aforesaid authoritative pronouncement of the Hon'ble Apex Court in the larger bench reference, there is hardly any room for any doubt that the onus on the holder of the cheque before launching a prosecution under Section 138 of the Act is only to the extent of sending the notice to the correct address of the drawer. Thereafter, the necessary consequences as enshrined in Section 27 of the General Clauses Act would follow, as per which has to be presumed that the notice has been served on the addressed. It is not disputed by the learned counsel for the petitioner that the notice, which was sent by the complainant was at the correct address of the accused. Who at the correct address receives the notice cannot be the control of the complainant. It would be too harsh and virtually an absurd proposition to require from the holder of the cheque to manage the affairs in such a fashion that the same is served on the addressee himself. It is only in order to avoid such situation that the Legislature enacted Section 27 of the General Clauses Act providing for presumption of service, even in cases, wherein the notice is not accepted by the addressee or cannot be served for various other reasons. As interpreted by the Hon'ble Apex Court in C.C. Alva Haji's case, even a refusal to accept the notice has been considered to be a sufficient service upon the addressee. If the contention of the learned counsel for the petitioner is accepted then the same would lead to situation of absolute absurdity. Such an interpretation would be totally against the spirit of Section 138 of the N.I. Act. The unscrupulous accused would then easily manipulate the affairs and have the acknowledgement of the notice signed by anybody apart from himself/herself and then try to take a shield of non-service of the notice for raising a defence that the notice was not served and thus proceedings are vitiated. This in the opinion of this Court cannot be correct interpretation of the legal requirements of the Section 138 of the N.I. Act. The Hon'ble Apex Court whilst considering the case of M.D. Thomas (supra) was not made aware of the earlier Larger Bench decision rendered in the case of C.C. Alva Haji. Applying the law of precedents, the decision rendered by the Larger Bench of the Hon'ble Apex Court in the case of C.C. Alva Haji has to be considered to be holding field and to be laying down the correct position of law.

Dr. MPS RAMANI Ph.D.[Tech.] (Scientist/Engineer)     22 September 2015

I am waiting for some more information to narrate the Markanday Katju judgment with respect to Section 7B of the Indian Telegraphs Act, which has played havoc and is still playing havoc with mobile phone users, notwithstanding so many Government circulars.

Respected advocate Sir::  Could you spell out what would have been your advice to the author of the original query if you had seen his post one year back?  So many learned lawyers had advised him to send notice by registered post. What would have been your advice? Quoting laws and judgments are done on the floor of the court. Here the lawyers have to give practicable advice to the client which could even be to abandon the case.

Most probably what would have happened in the cited case was like this:

The lower court would have given judgment against the accused. In consequence the accused would have had to go to jail. Hence he would have put in all his money and effort to go all the way to Delhi before the Supreme Court. He would have hired a clever lawyer. His clever lawyer would have searched all the law books to look for a loop hole to save his client. The best way to counter the case would have been to nip it in the bud. The first step in the case was the Complainant sending notice to the accused. If that step is nullified the entire case would fall flat. He would have presented those arguments on the floor of the court which appear in the judgment. The Complainant would not have got such a clever lawyer. In the final analysis lawyers make or break cases.

As I said earlier judges are no Hrishis and their pronouncements are no gospels. The unfortunate affected litigants can do nothing but to accept the judgment. But here this is a ‘Lawyer’s Forum’ where judgments and other legal matters can be discussed threadbare and constructive criticism given. That way only we can improve the quality of judgments in this country.

Section 27 of the General Clauses Act has a history. The postal system was introduced in this country by the British. It was His Majesty’s service. Postage stamps bore the image of the crown, just as in the case of coins. The Service was given under the orders of the Emperor. There is an instance in the story ‘Naganathan at School’ by R. K. Narayan. Naganathan sends a money order. His not so good friend wants him to get back the money. They go to the Post Office and request the Post Master.  The Post Master refuses. He says that a money order sent or a letter dropped in a post box immediately goes under the custody of His Majesty. It can only be delivered to the addressee. Only if it could not be delivered to the addressee it will be returned to the sender. .Postal Service carries the dignity and respect of a sovereign service. Section 27 speaks only about delivering the letter to the postal department by the sender. It deliberately does not say anything about what happens further. What is practicable and under the control of the sender is to deliver the letter at the Post Office.

No court can nullify or repeal a statute. Court can interpret the statute. It cannot say it is not valid or it has to be scrapped. Supreme Court rightly said that Section 377 IPC cannot be scrapped by the court. If it is to be repealed it would be the prerogative of the legislature.

The cited judgment on Section 27 of the General Clauses Act would play havoc with cases under NI:138 and may be with so many other cases. The accused in such cases will be set free and will have a field day.

Why are the other lawyers silent?

 

 

Madhu Mittal (Director)     23 September 2015

Respected Sirs,

please find  copy of  case Bhagwati Kumar Gupta vs. State of Rajasthan & Anr. (21.12.2012 - RAJHC) attached.


Attached File : 291476 20150923112318 198852564 bhagwati kumar gupta.pdf downloaded: 136 times

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