Upgrad LLM

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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Sr. ADVOCATE Bombay High Court Mob: 9892432152

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. 

 
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Practicing Lawyer

 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.

 
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ADVISOR

 

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

 
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LAWYER -JOB

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 .   

 
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ADVISOR

 

 Under section 144 of N.I. Act service of accused can be effected through 
registered post/speed post or by courier service and if the accused refuses to 
receive the summons, he can be declared served and court can take coercive 
measures for entering appearance of the accused.  Chapter VI of Cr. P.C., under 
section 62, 63 and 64, provides how summons are to be served on accused 
persons by police. Section 65 thereof provides that if service cannot be effected 
in the manner as provided in section 62, 63 or 64 of Cr. P.C., the serving officer 
shall affix one copy summon on some conspicuous part of his house or area in 
which the accused resides and the court after making such inquiries may declare 
that the summons have been duly served.  Thus service by affixation is a valid 
mode of service under criminal law and wherever the accused is evading his 
service, the court of MM should direct  service through affixation as provided 
under section 65 of Cr. P.C. and in case the accused does not appear the court is 
at liberty to take steps for coercive appearance.  
 
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