cheque bounce u/s 138 NI act notice not served on accused
srikanth kumar bandari
(Querist) 22 April 2010
This query is : Resolved
hi legal experts this is srikanth bandari i got a case u/s 138 NI act where notice was issued by complainant but the same was not served on the accused. the case facts are, my client obtained a loan to the tune of Rs 1,25,000/- from a finance company and at the time of obtaining loan my client issued some blank, signed, undated and unfilled cheques in favor of finance company in the year 2006 and later he committed defaulted and subsquently the finance company filled up the dates, and filled the blank columns without the consent of my client and got bounced the cheque and filed the case under 138 of NI ACT. now my doubts are.
1) whether criminal complaint u/s 138 is maintainable in absence of proof of service of legal notice on the part of alleged accused?
2)Whether the cheques issued at the time of obtaining loan can be construed as legal enforcebility u/s 139 of NI ACT?
3)Whether the complaint is maintainable in view of material alteration made by the complainant/finance company without consent of the alleged accused?
4)The onus/burden to prove that legal notice is served or not served lies upon whom, whether on complainant or on the accused?
5)please provide citations/authorities where complaint is not maintainable in absence of proof of service of legal notice u/s 139(b), and material alteration done on the cheque which was in the custody of the complainant.
Gulshan Tanwar
(Expert) 28 April 2010
1. Not maintainable as the notice had not been served which is an important and essential part of the proceedings/ or for initiation of the complaint case.
2. Can u call them cheque? :)
3. there are lots of judgments in your favour in this regard, u can read my book over this topic titled - QA-VI, published by Singhal Law Publishers, Delhi
4. On the complainant first and later who alleges, its upon that person "ONUS= ON US".
5. Read book there are lots of judgments QA-VI, published by Singhal Law Publishers, Delhi
