138 of N I Act
Bhanu U S Minhas Advocate
(Querist) 07 January 2011
This query is : Resolved
Dear Experts,
I have filed a complaint U/S 138 of NI Act it is now at arguments stage. Tenant has issued cheque to land lord which was bounced due to insufficiency of funds notice was served to the tenant and complaint was filed Counsel for accused has raised point in arguments that the notice was not mentioned in complaint. it is correct but the same was mentioned in the affidavit filed with complaint and copy of notice and acknowledgment was exhibited.Now the JMIC is asking for law on this error.please help me with some case law and i would like to know that can he dismiss the complaint on this ground that the notice was not mentioned in complaint
nishad
(Expert) 07 January 2011
15 days notice is a statutory requirement under S.138 and as such, the details of the same have to be mentioned in the compliant filed u/r 138.I am afraid it may get rejected if the Hon'ble Court gets too technical on the subject....lets keep the forum open on the subject and perhanps,u may get something handy..
Arvind Singh Chauhan
(Expert) 07 January 2011
I think it not a gross irregularity or illegality. Notice is filed with complaint and is mentioned in affidavit and has been exhibited. It is enough.
Another point is that in absence of notice court can not take cognizance, and after full consideration court took the cognizance. Accused did't challenge the cognizance and raising this issue first time.
Ajay Bansal
(Expert) 08 January 2011
Agreed with arvind.
Advocate. Arunagiri
(Expert) 08 January 2011
Notice is filed along with complaint. No irregularity.
You have a case.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 08 January 2011
Notice not mentioned in the complaint is fatal , no relief possible. Even if all others agree.
Morever in rent cases the principle of LAST COME FIRST OUT is applicable and so even if the cheque was bounced it is not offence.
So Even if conviction in lower court it will be set aside in appeal.
Amit Minocha
(Expert) 08 January 2011
The Court has taken cognizance and in evidence the witness has deposed about notice.Do make a counter argument that you were not confronted on point of notice during cross viz-a-complaint. However, depending upon the Court to Court non mentioning in the Complaint may still backfire as it is a crucial fact which was not disclosed in the complaint.
