Is sending notice in 138 case mandatory? The SC says if summons are sent along with complaint and the accused still does not pay within 15 days, the notice is deemed to have been served.
Quoting relevant para from the judgement:
17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed inBhaskaran's case (supra), if the 'giving of notice' in the context of Clause (b) of the proviso was the same as the 'receipt of notice' a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act.
IN THE SUPREME COURT OF INDIA
Criminal Appeal No. 767 of 2007 (Arising out of S.L.P. (Criminal) No. 3910 of 2006)
Decided On: 18.05.2007
Appellants: C.C. Alavi Haji
Vs.
Respondent: Palapetty Muhammed and Anr.
Hon'ble Judges:
K.G.Balakrishnan, C.J., R.V. Raveendran and D.K.Jain, JJ.
