138 Premature complaint
Bindu
(Querist) 24 June 2008
This query is : Resolved
I am for the accused & the complainant is bank. The matter is at the stage of cross
In the present case the statutory notice is dated 25/06/2007 & no where in the complaint nor affidavit there is whisper of when it was posted, neither the A.D Token issued by the postal authority s exhibited.
The complainant states that the notice which was posted returned intimation Unclaimed & is deemed service as per General clauses . However , the intimation which was posted to the recipient of the letter i.e my client on 27/06/2007. The complainant has taken that date as service date to accused. And they have filed the complaint on 19th July 2007. My Question is of premature complaint
Here in the present case, the complainant have wrongly taken the intimation date from postal authority to collect the letter by my client as the date of service of the notice. Which cannot be assumed to be date of service
As the postal authority have to wait for 7 days from the intimation & if the recipient does not collect or is not able to receive the letter then it is returned to sender with endorsement of non service. Therefore it is the date of endorsement of non service which has to be counted as deemed service not the intimation date by the postal authority to recipient to collect the Letter.
Therefore , in my point of view the same is premature & infracturous complaint. Kindly guide me whteher I am correct. Kindly provide me with the citations of premature complaint.
Further they have not annexed the loan papers
Srinivas.B.S.S.T
(Expert) 24 June 2008
I dont agree with you in computing the period. The date of intimation will be taken as the Date on which the notice was assumed to be served on your client. It is expected that when a notice was posted to a proper address, and was tendered to the receipient the date on it was tendered will be treated as served properly. It is the fault of the receipient to not to receive the notice.
Coming to non-production of loan papers. The Complainant has to prove beyond reasonable doubt about the existence of legally enforceable debt. So try to hit at that aspect.
H. S. Thukral
(Expert) 24 June 2008
In this case the date of filing of complaint is on expiry of 25 days after the date of alleged notice i.e. 25-06-07. Assuming that the letter had to be kept in abeyance for 7 days, if not delivered to recipient before it is sent back, even then complaint is filed after expiry of 15 days of deemed receipt of notice. In my opinion, it complies legal requirement.
As far as Loan Papers, I differ on the opinion of my Ld. friend Mr. Srinivas. You have to rebut the presumption in favour of bank that cheque issued by you was in discharge of existing liability.
Bindu
(Querist) 24 June 2008
in fact there is date of return to sender stating the reason of non service.
there will be the date of posting, day when it intimated the accused & if he collects within 7 days then it will be that date of recipt not the day of intimation.
And supposingly if he doesnot collect within 7 days of intimation then the date on which the information inscribed of non service to sender will be the date of service to be treated as the date os service because till that sender will not be able to know when the recipent recieved the letter
Srinivas.B.S.S.T
(Expert) 24 June 2008
Once the Complaint proved that the cheque was issued in respect of a legally existing debt only, the presumption under Section 139 comes into action. Please let me know Harbhajan Ji if I am wrong.
arunprakaash.m.
(Expert) 25 June 2008
Even if you include the waiting period of seven days the drawer of the cheque has 15 days time within which he can pay the amount. After this 15 day another one month limitation is there for the camplainent to file the case. If you calculate all these days you can come to answer to your query. On 19 july he has valid time to file the case.
H. S. Thukral
(Expert) 25 June 2008
Mr. Srinivas
The burden is on the accused to rebut the presumption in favour of the complainant. It is presumed that the cheque was issued in discharge of liability. The complainant does not have to prove it.
