9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (10) TMI 299 - HC - Indian LawsDishonour of cheque - Service of statutory demand notice - Whether service of statutory demand notice as contemplated under Section 138(b) of the Negotiable Instruments Act, 1881, on the drawer of the cheque can be held invalid on the ground that the office copy of the said notice filed by the complainant alongwith the complaint under Section 138 of the N.I.Act , does not bear the signature either of the counsel, who sent the said notice or of the drawee of the cheque? HELD THAT - The Honourable Apex Court 2012 (12) TMI 154 - SUPREME COURT has held that the complaint under Section 138 of the N.I.Act, without signature can be maintained when such a complaint is verified by the complainant and the Process is issued by the Magistrate after due verification It is quite obvious that only after noticing that the office copy filed alognwith the complaint is unsigned, the respondent has cleverly raised a defence of non-compliance of the provisions under Section 138(b) of the N.I.Act. Had the office copy be bearing signature either of the party or his Advocate, perhaps the respondent may not have taken any such defence. It is thus evident that, to defeat the claim of the complainant, the respondent had raised a technical plea that there was no compliance of Section 138(b) of the N.I.Act and therefore the complaint was not maintainable. Unfortunately, the technical plea so raised prevailed with the learned Magistrate and resultantly the complaint was dismissed by the Trial Court. There is no hesitation in holding that the Trial Court has grossly erred in dismissing the complaint filed by the present appellant under Section 138 of the N.I.Act, on the ground that the office copy of the statutory mandatory notice as contemplated under Section 138(b) of the N.I.Act, filed alongwith complaint was not signed either by the complainant or his Advocate. The impugned Judgment and order, therefore, cannot be sustained and deserves to be set aside - appeal allowed.
Issues Involved:
1. Validity of statutory demand notice under Section 138(b) of the Negotiable Instruments Act, 1881. 2. Issuance of cheque for discharge of legally enforceable debt or liability. 3. Presentation and dishonour of the cheque within the statutory period. 4. Failure to pay the cheque amount after receipt of notice. 5. Commission of an offence punishable under Section 138 of the N.I. Act. Issue-wise Detailed Analysis: 1. Validity of Statutory Demand Notice: The core issue was whether the service of statutory demand notice under Section 138(b) of the N.I. Act is invalid if the office copy of the notice filed does not bear the signature of either the counsel or the complainant. The Magistrate had dismissed the complaint on this ground, deeming the notice invalid due to the lack of signatures. However, the High Court found this reasoning flawed, emphasizing that the absence of a signature on the office copy does not nullify the notice itself, especially when the notice was duly served and acknowledged by the postal authorities. The High Court relied on precedents such as Indra Kumar Patodia vs. Reliance Industries Ltd. and others, which held that a complaint under Section 138 without a signature is maintainable if verified by the complainant. The Court also referred to C.C. Alavi Hazi vs. Palapetty Muhammed, which clarified that the mandatory requirement of issuing notice is fulfilled when the notice is sent by registered post to the correct address of the drawer. 2. Issuance of Cheque for Discharge of Legally Enforceable Debt or Liability: The Magistrate had affirmed that the accused issued the cheque in favor of the complainant to discharge a legally enforceable debt. This finding was based on the evidence presented, including the cheque and the cheque return memo indicating dishonour due to the account being closed. 3. Presentation and Dishonour of the Cheque within Statutory Period: The cheque was presented within the statutory period and was dishonoured, as confirmed by the bank's cheque return memo. This fact was not disputed by the accused. 4. Failure to Pay the Cheque Amount after Receipt of Notice: The Magistrate initially found that the accused did not fail to pay the cheque amount after receiving the notice. However, this finding was based on the erroneous conclusion that the notice was invalid due to the lack of signatures on the office copy. The High Court overturned this, establishing that the notice was valid and duly served, and the accused failed to make the payment within the stipulated period. 5. Commission of an Offence Punishable under Section 138 of the N.I. Act: Given the findings that the cheque was issued for a legally enforceable debt, presented within the statutory period, dishonoured, and that the statutory notice was validly served but not complied with, the High Court held that the accused committed an offence under Section 138 of the N.I. Act. The Magistrate's acquittal was thus set aside. Final Judgment: The High Court quashed and set aside the Magistrate's order, convicted the respondent under Section 138 of the N.I. Act, and sentenced him to pay a fine of ?2,00,000, with a default sentence of six months' simple imprisonment. The respondent was ordered to deposit the fine within eight weeks, failing which the default sentence would be enforced. The appeal was allowed, and the Magistrate's judgment was overturned.
|
