NI Act S. 138---Legal notice "Un Claimed"
Jitendra Raval
(Querist) 03 April 2009
This query is : Resolved
The complaintant sent the legal notice to the accused. It was the inter state communiction. i.e Gujarat and Maharashtra, The complainant written the address on the BOTH envelop in Gujarti Language and numbers mentioned in the address was also in Gujarti language. The notice was send through RPAD AND UPC. The postal department has admitted in writing that the particular intimation given to flat no C-103 instead of C-703 and hence remained unclaimed and returned to the sender after prescirbed period. Non of the notice was received by the accused. The complainant filed complaint under S.138.
1. Is the confirmation by the postal department itself about the wrong intimation of the envelope will be sufficient defence for accused?
2. Regarding notice send by UPC since the address was written in same way not delivered to the accused. Is accused Safe?
03. Can accused file complaint against the postal department in Customer redressal forum for the damage caused to the accused for such non delivery?
04. What are the rules of postal department in such inter state communicaion?
Kindly suggest the related caselaws subcribe to your answer if any.
With regards to all.
adv. rajeev ( rajoo )
(Expert) 03 April 2009
Dear Member,
When postal authroity is given in writing that intimation was given to C-703 it self is good defence to an accused. In NI act service of notice is must.
But accused cannot file consumer case against the dept., because he has not availaed any service from the dept., but complainant can file a consumer case against the dept., because of wrong intimation given.
Jitendra Raval
(Querist) 03 April 2009
Accused is also suffer. Had it been delivered he could have reply the notice or paid out.
Kiran Kumar
(Expert) 03 April 2009
rajeev is very much right.
now to ur second story...if he is willing to pay then still u may pay it in court without any additional burden.
even courts promote compromise in such matters.
keep in mind the complainant has also suffered...in my opinion he is the consumer in real sense.
moreover when the accused was served with summons of the court he could ve paid at that time only or if he appeared in the court then also court would serve appropriate notice.
K.C.Suresh
(Expert) 04 April 2009
Under the circumstances it can be concluded that the notice is not served in 138 proceedings
Jitendra Raval
(Querist) 04 April 2009
Thanks for the reply. kindly through some light on point no 4
Ravi Arora
(Expert) 04 April 2009
I don’t know Gujarati but if 103 appears 703 and because of that notice is not severed upon the accused than accused is 100% safe because service of notice is the basic for 138 of N.I.Act. It would be important to see which language the court used at the time of issuing the summons. And if accused wants to pay the cheque amount it is upon him but without service of notice no court force to pay the amount. But if complainant proves that accused manipulated the things and by the help of postman he manage all the things than it will be a different position. So first you clear the mode of language adopted by the court and give full detail of post office version
Jitendra Raval
(Querist) 06 April 2009
The mode of language adopted by the court while issuing the summon was 'English'. And the same was delivered by the same postman who returned earlier notice. It is not the question of payment or not. Actually it is the conspiracy by the complainant.She never wanted that notice should reached to me and hence unable to reply. Head post office of Pune conducted the departmental enquiry and it is confessed by the postman due to language problem he read c-103 instead of c-703 and hence the intimation was delivered in c-103. Ultimately, the concerned postman is not going to get out of this. He is innocent otherwise it is the quesiton of his job also. It is imposible to establish the manipulation as it was never happend. Pl reply
Hiralal Das
(Expert) 06 April 2009
I agree with views of the ld. friends.
