sir,intersting case of 138.
ravi anu ramraika
(Querist) 16 February 2010
This query is : Resolved
appelant give me notice first through publication in news paper, may i go high cort in 482, kya parivadi ke dvara paper main pahle notice publish karakar, bad main by post se bhi bheja hai, maine parivadi ke upar 500 manhani ka mukadma kiya hai, kya 482 main mujhe high court rahat degi
Raj Kumar Makkad
(Expert) 16 February 2010
nahi degi kyonki paper main publication karne ke karan aapne oose manhani main le hi liya hai isliye aapko 138 ke mukdme main is karan se koi rahat ki kamna nahi karni chahiye. aapko noitce mila hai aur aapne iske bawjood paise nahi diya to aapke virudh complaint dal di gyeee hai isliye 482 kahin aade nahi aata aur aapko koi rahat nahi mi sakegi.
ravi anu ramraika
(Querist) 16 February 2010
sir, a.p.cou
THE HONOURABLE SRI JUSTICE P.S.NARAYANA
Criminal Petition No.3973 of 2000
29-03-2006
Salvaji Prabhakar Rao
The State of A.P., rep by
Public Prosecutor and another
Counsel for the Appellants: Sri Srinivas Reddy
Counsel for the Respondent No.1: Public Prosecutor
Counsel for the Respondent No.2 :- Sri Venkat Reddy
:Order:-
1. Heard Sri Jitender Rao, the Counsel for petitioner and Sri Venkat Reddy,
the Counsel for R.2-complainant and the learned P.P.
2. The only question raised by the Counsel for petitioner Sri Jitender Rao is
that there was no issuance of statutory notice as contemplated by Section 138 of
the Negotiable Instruments Act (here-in-after in short referred to as 'N.I.
Act'). The learned Counsel would maintain that even if the allegations made in
the complaint, if taken on their face value, in view of the specific allegation,
made that a notice was straight away issued by way of paper publication, the
same cannot be said to be in compliance with the provisions of the N.I.Act.
3. The learned Public Prosecutor however would contend that these aspects may
have to be gone into at the appropriate stage.
4. Sri Venkat Reddy, the learned Counsel representing R.2-complainant would
submit that it is no doubt true that there is no specific allegation in the
complaint that attempts were made to effect service before making the paper
publication but these are all factual aspects which may have to be gone into at
the appropriate stage. The learned Counsel also placed strong reliance on the
decision of this Court in D.Nagaraj v. S.Balaram1.
5. Heard the Counsel.
6. The relevant portion of the complaint filed by R.2-complainant reads as
hereunder:-
"That the accused has issued a cheque bearing No. CA No.826307 dt.15-2-
1994 for Rs.10,000/- to the complainant for repayment of the due amount to the
complainant. The complainant presented the said cheque at Andhra Bank,
Mancherial and the same was sent to Kalyankhani Branch (0803) of Andhra Bank for
collection. But the Branch Manager of Andhra Bank, Kalynkhani branch returned
the cheque along with a memo dt.27-7-94 stating that the cheque cannot be
honoured due to insufficient of funds. On receiving the cheque and dishonour
memo, the Branch Manager of Andhra Bank, Mancherial sent intimation dt.1-8-94 to
the complainant.
That the complainant issued a notice within statutory period of 15 days
through paper publication in Adilabad District edition of Eenadu dt.11-8-94.
After publication of notice, and after expiry of 15 days, grace period, the
accused approached the complainant to wait for 15 days, to enable him to pay the
cheque amount. But no payment was made by the accused to the complainant.
Hence, the accused is liable for punishment under Section 138 and 142 of
N.I.Act."
7. On a careful reading of the allegations made in the complaint, it is clear
that in para 3 it was specified that the complainant issued a notice within the
statutory period of 15 days through paper publication in Adilabad District
edition of Eenadu dt.11-8-94. This is the specific stand taken by the
complainant - respondent No.2 herein. No doubt strong reliance was placed on
the decision of this Court in D.Nagaraj's case (referred 1 supra) wherein the
learned Judge of this Court held at para 6 as hereunder:-
"It is no doubt true that cause of action for filing of the complaint
arises fifteen days after service of statutory notice of demand after dishonour
of the cheque was served on the drawer. In view of the legal presumption
available to the 1st respondent in case of notice sent by registered post, it
can be presumed that the notice was served within two or three days after it was
registered in the post office. Therefore, the cause of action for filing the
complaint can be taken to have arisen about two or three days after statutory
notice was registered in the post office. Since it is not the case of the
petitioner that the complaint is filed beyond 30 days after service of statutory
notice on him, it has to be taken that the complaint was filed within the period
of limitation. As stated above since the presumption is a rebutable
presumption, depending on the evidence adduced by the parties during trial, the
trial Court has to decide whether notice was in fact served or not. But the
complaint cannot be quashed on the ground that notice was not served on the
petitioner. In the facts and circumstances of this case M/s.Shakti Travel and
Tours Limited (2000 (7) Supreme, 90) and Rukhmaniraj Yarn Co. (2001 (1) ALD
(Criminal) 371 (Mad) relied on by the learned Counsel for petitioner have no
application to this case."
The aforesaid case is distinguishable on facts. Apart from this aspect of the
matter, while exercising powers under Section 482 of the Code of Criminal
Procedure, prima facie, the allegation made in the complaint may have to be
looked into. When on the glance of the allegations made in the complaint it is
clear that straight away publication was made in Eenadu newspaper, this cannot
be said to be in compliance with any of the statutory provisions of the N.I.Act.
Hence, this Court is of the considered opinion that inasmuch as the provisions
of Section 138 of the Act aforesaid had not been complied with, the very filing
of the complaint is not in accordance with law and hence, the same is liable to
be quashed. Accordingly, the Criminal Petition is hereby allowed.
?1 2002 (2) ALT (Criminal) 22 (AP)
rt ki ruling post kar raha hu
ravi anu ramraika
(Querist) 16 February 2010
138 ke hisab se notice given in writing only.va notice persanaly serve ki jani chahiye, 138 ke notice dene ke tarike main kahi bhi news paper main publish ki vyavastha nahi hai, my mob no 09329288860
Sarvesh Kumar Sharma Advocate
(Expert) 16 February 2010
humm
tecnicaly there is a point !
main issue is u want relif form high court by 500,
against pariwadi of n.i.act
if u think so dn go ahed .
& plz also give d result on d fourm profile>>>>>>>>>>>>>>>
well i m with u
Sukhija
(Expert) 16 February 2010
my point of view is different.Notice mentioned u/s 138 does not say the way of issuance of notice. by email also sending of notice is valid,then if one sends notice thru newspaper why it is no notice? The purpose of giving notice has to be served.
ad. creaminall
(Expert) 16 February 2010
according to my opinion.....
1) a statutory notice u/s. 138 must issued after return of cheque but within a period of limitation of one month.
2) a clear demand of cheque amount should mention in the said notice.
3)fifteen days time should be given to the accused for the payment of dishonour cheque.
4)the statutory notice must served upon the accused.
5)the complaint should file only after the complation of statutory period but within one month.
if any of the above term is not complete then the complaint u/s. 138 may quash.
your matter is interesting. if u need any kind of help contact me.
Parveen Kr. Aggarwal
(Expert) 16 February 2010
Clause (b) of proviso to section 138 of the Negotiable Instruments Act, 1881:
"The payee or the holder induce course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer, of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheques as unpaid"
The provision lays down the following requirements regarding such notice:
(i) Notice must be for demand of cheque amount,
(ii) Notice must be in writing,
(iii) Notice must be to the drawer, &
(iv) Within 30 days of receipt of information.
The notice contemplated under the provision is a notice in writing to the drawer making demand. A publication in newspaper is a public notice and not made to any specific person (drawer).
As held by the Hon'ble Andhra Pradesh High Court in H.L. Agarwal v. Rakesh Agarwal,
1997 (1) ALT (Crl.) 678, the offence under Section 138 of the Act "being a technical offence" all the technical formalities as contemplated under Section 138 of the Act must be complied with.
So, the failure on the part of the complainant to serve personal written notice of demand has rightly been resulted into quashment of the complaint.
Swami Sadashiva Brahmendra Sar
(Expert) 17 February 2010
Notice through publication is not sufficient and proper notice for the purposes of s 138, NI Act. Defamation and proceeding under s 138 are different things. both can not be clubbed together. both relate to entirely different areas. defamation proceedings can be initiated irrespective of proceedings under s 138 NI Act. NI Act provides procedure for recovery and prosecution, but does not permit a person to defame the defaulter through Medea.
Swami Sadashiva Brahmendra Sar
(Expert) 17 February 2010
Akhbaar ki suchnaa ke aadhaar par magistrate ke saamne pariivaad nahin prastut kiya ja sakta. yadi aise parivaad par magistrate ne summon jaari kiya hai to 482 men high court use quash kar sakta hai.
Guest
(Expert) 17 February 2010
main shri Raj Kumar Makkad ji se sahmat hoon. dhanyawaad.
ravi anu ramraika
(Querist) 17 February 2010
thanks for all, main aaj high court gaya tha,just aaya hu,ye case ek issue banega sabke liye. ismain kai rochak bat hai, kya koi mujhe 2006(1)criminal court cases 444 (delhi) yaha uplabdh kara sakta hai
ravi anu ramraika
(Querist) 17 February 2010
mere case main mere upar galat charge laga diya gaya tha.mera kahna hai ki 138 summon mamla hai,va 215 ya 216 varant mamle main lagu hoti hai.saman mamla 251 se 259 main apradh vivran badalne ki vyavastha nahi hai
Ravi Arora
(Expert) 17 February 2010
Notice through News Paper is not valid. Because notice must be sent by email, currier, registered post, speed post, what I under stand it should by way which you can prove that what you sent is received by the person who is supposed to make the payment. And by way of newspaper you cannot prove it. rest do agree with Mr. makked
