Prosecution under s.138 of NI Act is maintainable even though Notice is not received by accused
Identical
question came to be considered by the Hon'ble Supreme Court in the case of C.C. Alavi Haji and in para 17 the Hon'ble Supreme Court has observed and held as under :-
It
is also to be borne in mind that the requirement of giving notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving 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 Section 138 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, in any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskarans Case (supra) if the "giving of notice" in the context of Clause 9(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."1
Gujarat High Court
Dineshbhai vs Manshukhbhai on 10 January, 2012
https://www.lawweb.in/2013/12/prosecution-under-s138-of-ni-act-is.html
