Section 139 of Negotiable Instruments Act
Kumar. K.K.
(Querist) 04 June 2011
This query is : Resolved
I request my legal fraternities to inform the latest legal position with the appropriate citation for the following my query.
1.While the notice as required under section 138(b)sent to the drawer of the cheque is returned with the postal endorsement that the "addressee left" whether it would be a construed service of notice?
2.While the drawer is not at all in knowledge that one of the cheques issued by him is returned and he has no knowledge of the notice U/s 138 (b) whether he would be deemed that he has committed the offense U/s 138 of N.I. Act?
M/s. Y-not legal services
(Expert) 04 June 2011
1. No its can't be treated as summons served.. Court will ordered to the complainant to issue the summons to correct address..
M/s. Y-not legal services
(Expert) 04 June 2011
If a cheque bounced for any one reason mean its only can't be treat as offence under section 138 of n.i act.. The complainant should be issued notice to the drawer with in 30 days from the date of return. In that notice he have to be called the drawer to pay the subject cheque amount or reply to that notice. Both are failed mean then only its can be treated as offence under this section.
R.Ramachandran
(Expert) 05 June 2011
Dear Mr. Tom,
One is supposed to serve the notice only to the last known address. If the fellow has left the last known address, then it is for him to give instructions in writing to the Post Office where his letters should be re-directed. This having not been done, how do you say that the notice is not served?
Have you any citations to support your view?
While I will be doing my research and come back to you, in the meanwhile I am afraid, your views do not seem to be correct and in any case, they do not seem to be based on any legal decisions.
prabhakar singh
(Expert) 05 June 2011
ans1)NO!IT SHALL NOT BE CONSTRUED AS SERVICE OF NOTICE.
2)NO IT SHALL NOT BE DEEMED.
A WAY OUT IS THAT WHEN NOTICE IS RETURNED WITH ENDORSEMENT"ADDRESSEE LEFT" ONE SHOULD GO FOR A PUBLICATION OF THAT NOTICE WITH ADDED FACTS OF DRAWERS' ABSCOND GIVING STIPULATED TIME AGAIN TO PAY AND THEN ONLY COMPLAINT SHOULD BE FILED WITHIN PRESCRIBED TIME, THEN ONLY THE COURT SHALL DEEM THAT DRAWER HAS COMMITTED OFFENCE UNDER PROVION IN REFERENCE HERE.
Ravikant Soni
(Expert) 05 June 2011
Answer to the Question one: Yes it is a sufficient service of notice. If it is sent on correct address....
AIR 2005 SUPREME COURT 109 "V. Raja Kumari v. P. Subbarama Naidu"
= 2004 AIR SCW 6344
another
AIR 1999 SUPREME COURT 3762 "K. Bhaskaran v. Sankaran Vaidhyan Balan"
= 1999 AIR SCW 3809
And more
In sec 27 of General clauses act there is a presumption as to service of notice if post by registered post.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 05 June 2011
Above citations are not applicable in present case.
You have to find the correct address.
More ever the NI 138 has peculiar provisions which escape its proper appreciation.
First the notice to be given after dishonor of the cheque.
Second which is most most important is that offense is committed only when the accused has failed to pay within time after reciept of notice.
SO THERE ARE TWO CONDITIONS FIRST IS TO GIVE NOTICE AND OTHER IS TO RECIEVE NOTICE.
Vinod kashyap
(Expert) 06 June 2011
Mr. Ravikant rightly stated, there is presumption if reg post sent at last knowing address
piyush sharma
(Expert) 10 June 2011
Mr Ramachandran and Mr. Ravikant is right.
