Receipt of notice u/s 138 n i act
CHARAN SINGH
(Querist) 17 December 2013
This query is : Resolved
A case u/s 138 was filed in Delhi court. Notice was sent by registered A D post but A D was not received back. At the time of submission of case, copy of notice and original postal receipts were filed with the case in the court. Reply of the notice was received by the complainant after submission of case. Now the case is fixed for final argument and the accused is pleading that he did not receive any notice. Before this, he never objected in the court that he had not received any notice. Even in the statement u/s 313, he did not complain of non – receipt of notice. Whether complainant’s duty is completed after sending the notice by registered A D post within time at the correct address of the accused?
Dr J C Vashista
(Expert) 18 December 2013
Mr. Charan Singh,
Yes complainant’s duty is complete after sending the notice by registered A D post within time at the correct address of the accused.
Reply of notice is sufficient evidence to establish that the accused has received the notice under reply, otherwise provisions of Section 27 of The General Clauses Act would have applied.
It is general practice that any accused tries to find out some escape route which is not available in the instant circumstances.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 18 December 2013
This is a good defense for the accused.
The presumption will be available only when there are specific pleadings that the notice was sent to the correct address of the accused otherwise not.
Apex court in one such case has said that:-
10. It is, thus, trite to say that where the payee dispatches the notice by registered post with correct address of the drawer of the cheque, the principle incorporated in Section 27 of the G.C. Act would be attracted; the requirement of Clause (b) of proviso to Section 138 of the Act stands complied with and cause of action to file a complaint arises on the expiry of the period prescribed in Clause (c) of the said proviso for payment by the drawer of the cheque.
Nevertheless, it would be without prejudice to the right of the drawer to show that he had no knowledge that the notice was brought to his address.
V R SHROFF
(Expert) 18 December 2013
Posting notice at true and correct address is sufficient.
Over and above, accused replied the notice proves he recd it. he had knowldg
So no further need to prove issuing notice.
no defence with accused.
ajay sethi
(Expert) 18 December 2013
in your complaint you must have made averment that notice was sent by Regd post Ad at address of accused . is the reply received from accused brought on record?
Rajendra K Goyal
(Expert) 18 December 2013
Reply of the notice received is proof of notice was sent when the postal receipt is available.
T. Kalaiselvan, Advocate
(Expert) 18 December 2013
The accused plea of not receiving the notice will not considered especially when he has already given a reply to the same and the same has been brought to the notice of the court. Moreover if the proof of sending the notice to he accused is proved beyond doubt, it is deemed to have been served upon him so this plea will not be maintainable unless he rebutted the case on some other grounds.
Uday Kumar
(Expert) 04 May 2014
Complainant can within their capacity/power can only dispatch of the notice however complainant has no control on receipt of the notice, even if notice is received back unclaimed would be sufficient to file Complaint 138 NI act. Supreme Court already established this under 28 of general cause act and 114 of evidence act by way of strong judgment and trial courts are following this. however Complaint need not to prove the dispatch and delivery if the notice if reply of the notice is received from the accused by the complainant. because reply is not possible without receipt of the notice.
Most important, Statuary notice under Law was maintained for honest payee whose cheque got dishonoured due to the situation beyond under their control otherwise they have no intention to hold the money, Now Cheque hit in the Payee Bank and even entry in this regards is available in payee bank A/c which is maintained by Payee only hence only saying by the payee/accused that I am not aware about return of the cheuqe cannot be believed by the Court and rebuttal of this presumption is very difficult by the accused/payee.
