parasgupta 30 June 2015

Second notice u/s 138 n.i act

my query is regarding the second notice send to the accused person u/s 138 N.I Act when the first demand notice sent to the accused has returned back with remarks " no body was found at home" and the same demand notice was sent to the accused the second time and which got received by him.

the Brief facts are:

1. Cheque dated :- 22/04/2015

2. returning Memo dated ;- 22/04/2015

3. 1st statutory demand notice( Reg. AD dated) :- 27/04/2015 ( within one month from the date of knowledge of dishonour)

4. 1st demand notice returned back to the complainant as unserved :- 05/05/2015 (with the remarks that "nobody was found at home despite visiting many times")

5. 2nd demand notice was sent on :- 08/05/2015

6. 2nd notice received on :- 09/05/2015.

7. 15 days time period ends on as per receipt of 2nd notice :- 24/05/2015

the complaint was filed well within one month from the expiry of 15 days.

now the magistrate is asking me whether there is any provision regarding second notice under N.I Act,

I had pleaded the case and informed him the the first demand notice was never served upon him as he was not found at home by the concerned post man, therefore i sent the second demand notice to him which got served upon him and that was too well within time and within the limitation period. and within the purview of Sec. 138(b) and 142.

Kindly suggest something on this topic, what to do further. as the complaint is kept open for taking cognizance.

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5 Replies

Dr. MPS RAMANI Ph.D.[Tech.] (Scientist/Engineer) 30 June 2015

When a notice is sent to the last known address, even if is returned unserved you could have filed your complaint before the court. But as the notice was returned with the remark not found at home you could suspect that the person was absconding. In such an event if you file the complaint the court summons can also get returned. Then the alternative available to you would be to give advertisement in news papers and pray to the court to give order to the police to arrest him. In order to avoid such complications you can tell the court that you sent the notice a second time to confirm the presence of the person at the address. If the validity period of the cheque is not over, you can repeat the entire process beginning with presenting the cheque in the bank.

parasgupta 30 June 2015

Sir but the second notice sent by me was received by the accused on the next date, and moreover the second demand notice was well within the limitation of one month for sending demand notice from the date of knowledge of dishonour.

saravanan s (legal advisor) 30 June 2015

since everything was done according to law and within the limitation period i dont find any reason to stick with the first notice that has returned.you can also file sec 420 ipc on the accused person and also a summary suit

parasgupta 30 June 2015

Thank u sir..but the judge is lil bit adament about the second notice and making things complicated for both..i had searched various judgments but unable to find appropriate..