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Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     04 January 2014

M.d. thomas vs p.s. jaleel case is overruled or not

Dear Friends

I need some advise on the below mention judgement that this judgement is overruled or not.

Supreme Court of India
M.D.Thomas vs P.S. Jaleel & Anr. on 13 April, 2009
Author: ......................J.
Bench: B.N. Agrawal, G.S. Singhvi

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.711 OF 2009

(Arising out of S.L.P. (Crl.) No.7828 of 2007)

M.D. Thomas ...Appellant(s)

Versus

P.S. Jaleel and Anr. ...Respondent(s)

O R D E R

Leave granted.

Heard learned counsel for the parties.

The Trial Court, upon conclusion of the trial, acquitted the appellant of the charge under Section 138 of the Negotiable Instruments Act, 1881, [for short `the Act']. On appeal by the complainant, the High Court set aside the order of acquittal, convicted the appellant and sentenced him to undergo imprisonment till the rising of the Court and directed to pay the sum of rupees one lakh twenty thousand to the complainant; in default, to undergo further simple imprisonment for a period of three months. Against the said order, present appeal has been filed by special leave. Learned counsel for the appellant argued that his client's conviction is liable to be set aside because before filing complaint, the respondent did not serve upon him notice as per the requirement of Clause (b) of proviso to ....2/-

-2-

Section 138 of the Act. He submitted that service of notice on the appellant's wife cannot be treated as compliance of the mandate of law. Learned counsel for respondent No.1 did not dispute that the notice issued by his client was, in fact, served upon the appellant's wife but argued that this should be treated as sufficient compliance of the requirement of giving notice of demand. Section 138 deals with the dishonour of cheque for insufficiency, etc., of funds in the accounts of the person who draws the cheque and lays down that 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 be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both. Proviso to Section 138 specifies the conditions which are required to be satisfied before a person can be convicted for an offence enumerated in the substantive part of the section. Clause (b) of the proviso to Section 138 cast on the payee or the holder in due course of the cheque, as the case may be, a duty to make a demand for payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. 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

....3/-

-3-

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.

......................J.

[B.N. AGRAWAL]

......................J.

[G.S. SINGHVI]

Please share your opinion with relevant judgement if any.

Thanks in advance.



 3 Replies

SANTOSHSINGH. (ADVOCATE sardarsena@gmail.com)     04 January 2014

This site is being exploited by :-

1) A set of so called experts who  do not have actual experience in handling any case in court and hence giving bookish replies.

 

2) Now tantriks etc and non legal persons seeking publicity has flooded this site.

 

In this back ground your effort to seek discussions is will be over looked by most of them.

 

Coming to your point there was a contrary SC court  case in 2007 which is also not over ruled so till the time both may be used .

 

Imp portion of 2007 case. 

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.

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.

R Trivedi (advocate.dma@gmail.com)     04 January 2014

it is true that both orders are present, so as and when it is brought to the notice of higher bench, the same shall be conclusively decided.

 

It is well established position of the law that no court  of law can add, delete or interpret differently if the meaning is crystal clear, in that sense M D Thomas order is a good law, the other order practically takes away any kind of notice related defense away from accused which is objectionable. The court can always say that on receipt of summon, you knew what was required to be paid, so you should have paid, this is bad. The SC has ignored the fundamental point of law, that is the maintainability of notice, because it has converted the summon practically as notice. What if notice is in violation of S.200 of the Indian Contract Act, the court can say, so what as accused knew on receipt of summon who is behind the demand. It cannot be ignored that summon is post cognizance of offense while notice atleast 15 days prior to even the offense is deemed to have taken place.

 

So M D Thomas is the right approach..

 

P. Prashant Kumar (Lawyer)     25 September 2017

It is true if everyone takes into account of alavi haji case. Then accused is not left with the ground of non service of notice and a close review of M. D. Thomas case is concerned it may not affect the Alavi Haji case because in Thomas case notice was served on husband of Accused. But Alavi Haji case is very disturbing judgment for Accused. Which needs to be reanalysed

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