Cheque bounce
Alok Agarwal
(Querist) 04 August 2014
This query is : Resolved
Dear respected members,
I am a Payee. Cheque bounced on 3rd July. I sent notice to drawer on 31st July via Registered Post A.D. Notice was not delivered showing on 1st July on India Post Website "Door Locked/First Intimation". My query is, if the door of the drawer remain locked or he pretends not to accept the notice. Is such kind of notice acceptable by the court. Can I proceed with court complaint under sec. 138 NIA after notice period of 15 days are over! Please advise!
Sudhir Kumar, Advocate
(Expert) 05 August 2014
No. If he is present and refuses to receive then it is deemed delivery. Notice is unserved.
Advocate. Arunagiri
(Expert) 05 August 2014
The notice returned with postal remark "not available in the house", "house locked" and "shop closed", it must be deemed that the notices have been served on the respondents.
The realistic interpretation for the expression 'giving notice' is that, if the payee has dispatched notice in the correct address of drawer reasonably ahead of the expiry of fifteen days, it can be regarded that he made the demand by giving notice within the statutory period.
ajay sethi
(Expert) 05 August 2014
1) In "Indo Automobiles v. Jai Durga Enterprises and others2" the Apex Court held that "once notice has been sent by registered post with acknowledgment due to a correct address, it must be presumed that the service has been made effective."
2) in view of Section 27 of General Clauses Act and Section 114 of Evidence Act, once the notice is sent by registered post by correctly addressing the drawer of the cheque, the service of notice is deemed to have been effected. Mandatory requirement of issue of notice in terms of Section 138 proviso (b) stands complied with when the notice is sent in the said manner. However, the drawer can rebut the presumption of service of notice by showing that he had no knowledge that the notice was brought to his address or the address mentioned on the cover was incorrect or the letter was never tendered or the report of the postman was incorrect."
Rajendra K Goyal
(Expert) 05 August 2014
If the notice has been received back with the remark refused, it would deem to be served. Well advised by the experts, agree with them.
T. Kalaiselvan, Advocate
(Expert) 06 August 2014
The notice returned with the said remarks is considered as deemed o be served, hence you can proceed with the intended cheque bounce case u/s 138 of NI Act.
