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TMI Blog2019 (10) TMI 299X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent 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. - CRIMINAL APPEAL NO.263 OF 2019 - - - Dated:- 3-9-2019 - P.R. BORA, J. Advocate for Appellant : Shri M.V. Ghatge Advocate for Respondent : Shri R.V. Gore ORAL JUDGMENT:- 1. Whether service of statutory demand notice as contemplated under Section 138(b) of the Negotiable I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the accused, the complainant himself deposed and also placed his reliance on the documents filed on record by him. The defence of the respondent was of total denial. The learned Magistrate framed the following Points for determination and recorded his finding as mentioned against each of the said points: Sr. No. Points for Determination Findings 1. Whether accused had issued cheque for discharge of legally enforceable debt or liability ? Yes. 2. Whether the cheque was presented within statutory period and it was dishonoured? Yes. 3. Whether accused had failed to pay the cheque amount after receipt of notice ? No. 4. Whether accused has committed an offence punishable under Secion 138 of N.I.Act ? No. 5. What order ? ..Accused is acquitted. 5. The learned Magistrate, thus, though recorded an af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ignature of the complainant or his counsel. The learned counsel taking me through the discussion made and the finding recorded in the said Judgment, submitted that the case of the present appellant stands at better footings. The learned counsel submitted that the ratio laid down in the case of Shaikh Farooq s/o. Shaikh Amir Bagwan Vs. Shaikh Rafiq s/o. Shaikh Ayyub and another [2017(1) Mh.L.J. 586] would not apply to the facts of the present case. The learned counsel cited one more Judgment of the Honourable Apex Court in the case of SIL Import, USA Vs. EXIM AIDES SILK EXPORTERS, BANGALORE [(1999) 4 Supreme Court Cases 567], to urge that when a notice sent by E-mail is also held to be a valid compliance of sending notice before initiating any legal proceeding, the office copy of the notice could not have been discarded by the learned Trial Court only on the ground that it was not bearing any signature below it either of the complainant or his counsel. The learned counsel also relied upon the Judgment of the Honourable Apex Court in the case of C.C.Alavi Hazi Vs. Palapetty Muhammed and Another [(2007) 6 Supreme Court Cases 555], wherein the law of presumption in respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 138 of the N.I.Act, itself was filed without any signature thereon. In the said matter a serious objection was raised by the accused therein to dismiss the said complaint on the ground that it was not signed by the complainant or his counsel. The Trial Court had upheld the said objection and had dismissed the complaint. The complainant challenged the order of acquittal before the High Court by filing an appeal in that regard. The said appeal was allowed by the High Court and though the order passed by the High Court was challenged by the respondent before the Honourable Apex Court, no interference was caused by the Honourable Apex Court in the Judgment and order passed by the High Court. The Honourable Apex Court has held in the said matter 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. 12. In the instant matter, in his testimony before the Trial Court, Jayesh Kushalchand Parekh (PW-1) has specifically deposed that on 22.03.2016, a notice was issued to the respondent accused demanding the amount of cheque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf of the accused that the complaint was liable to be rejected on that ground alone. The learned Single Judge of the Karnataka High Court, however, turned down the said objection holding that Section 138(b) does not contemplate that the notice should be signed by the party. I deem it appropriate to reproduce herein below paragraph No.7 of the said Judgment, which reads thus:- 7. The learned counsel for the petitioner vehemently argued that this decision is not applicable as the said decision was rendered by the Court with a reference to Sec. 80 CPC. On the other other hand, this notice is required in a criminal case as contemplated under Sec.138(b) of the Act. In a criminal case all the requirements of the provisions of law will have to be complied with, failing which the complaint is liable to be rejected. The object of issuing notice is absolutely clear from the reading of Sec.138. The object and purpose is to give an information to the person who had issued the cheque that the said cheque was dishonoured, so as to facilitate him to make good the amount within 15 days from the date of receipt of such information from the holder of the cheque. Whether that purpose is achieved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said case before the Honourable Apex Court, the plaintiffs father was a contractor and he had supplied charcoal to the Government. He had claimed additional amount in terms of the escalation clause in the agreement. Since the said amount was not paid, he had issued a notice under Section 80 of the CPC to the Government, but his claim was denied. He, however, died before he could institute suit against the Government. The plaintiffs i.e. sons of the contractor then filed a suit without issuing any fresh notice under Section 80 of the CPC. An objection was, therefore, raised that the suit was liable to be dismissed for want of statutory notice under Section 80 of the CPC by the plaintiffs, who had instituted the said suit. The Trial Court held that no further notice under Section 80 of the CPC was necessary and the notice issued by the father of the plaintiffs enured to the benefit of the plaintiffs. The Trial Court s decision was reversed by the High Court. The matter was then taken to the Honourable Apex Court. The Honourable Apex Court held that no fresh notice was necessary and the notice already served enured to the benefit of the plaintiffs. 16. The observations made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer utilised the section merely to raise technical defence contending either that no notice had been given or that the notice actually given did not comply with the requirements of the section. It is unfortunate that the defendants came forward with a technical plea that the suit was not maintainable at the instance of the plaintiffs, the legal heirs of Seth Lachman Dass, on the ground that no fresh notice had been given by them. This was obviously a technical plea calculated to defeat the just claim. Unfortunately, the technical plea so raised prevailed with the High Court with the result that the plaintiffs have been deprived of their legitimate dues for the last 35 years. 17. In the case of Shaikh Farooq (supra) relied upon by Advocate Shri Gore, the notice allegedly sent in compliance of the provisions under Section 138 of the N.I.Act, was returned unserved and the said unserved envelop, allegedly containing the said notice, was filed alongwith the complaint by the complainant therein. During the trial of the case, the said unserved envelop was opened by the Court and the notice was taken out from the said envelop, which was found to be unsigned. In the circumstances, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20. As per the provisions of Section 138 of the N.I.Act, before filing a complaint under the said Section, the payee or the holder in due course of the cheque, as the case may be, has to make 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 cheque as unpaid and if the drawer of the said cheque fails to make payment of said amount of money to the payee or as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice, only then such complaint can be filed. 21. It is thus evident that to send a notice on the correct address of the drawer of the cheque demanding the cheque amount and due service of the said notice on the drawer, are the only mandatory requirements as contemplated under Section 138 of the N.I.Act. In the circumstances, averments in the plaint that, such notice was sent by R.P.A.D. on the address of the drawer and the same has been duly served upon the drawer, shall be held the sufficient compliance. If postal slip evidencing that the notice was despatch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the acknowledgement receipt was not received within the reasonable time, correspondence was made with the Postal authority, whereupon it was informed by the said authority that the notice despatched on 22.03.2016, was delivered to the addressee i.e. respondent on 23.03.2016. In his testimony before The trial Court, the complainant had reiterated the aforesaid facts on oath. As stated earlier, the facts so deposed by the complainant have not been denied or disputed by the respondent. Further, the learned Magistrate has held that the complainant has successfully established that the accused had issued the subject cheque towards discharge of legally enforceable debt. The Trial Court has also held that the complainant has proved that the subject cheque was presented within the statutory period and it was dishonoured for the reason account closed . In paragraph No.15 of the impugned Judgment, the Trial Court has categorically observed that the accused has not seriously disputed issuance of cheque or its dishonour. The Trial Court has further observed that the vague answers given by the accused in his statement under Section 313 of the Code of Criminal Procedure also support contentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the present matter, it is not the case of the respondent that he did not receive notice dated 22.03.2016. It is the defence raised by the respondent that the complainant has failed in proving that the notice dated 22.03.2016 sent by him is a valid notice as contemplated under Section 138(b) of the N.I. Act. From the material on record, it is further evident that the defence as aforesaid has been raised by the respondent after noticing that the office copy of the notice dated 22.03.2016, filed by the complainant alongwith the complaint, is not signed either by the complainant or the Advocate through whom the said notice was sent. The learned Trial Court also has held it to be a serious lacuna in the case of the complainant by recording a finding that it was not a legal notice in the eyes of law. The learned Magistrate has gone one step ahead in further observing that even if the complainant had examined his Advocate on oath, who had sent the said notice, even then he would not have succeeded in proving the said notice as the same was not signed by the said Advocate. 27. The finding recorded as above by the learned Magistrate is wholly unsustainable. Even if it is assumed that p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. 30. The learned Magistrate has failed in appreciating and understanding the object and purpose behind adding of proviso (b) and (c) to Section 138 of the N.I.Act. As has been elaborately discussed by me herein above, the object of issuing the notice is to give an information and intimation to the person, who had issued the cheque that the said cheque has dishonoured so as to facilitate him to make good the amount within fifteen days from the date of receipt of such information from the holder of the cheque. The question is whether the said purpose can be said to have been achieved in the present matter. According to me, the same has been fully achieved. The complainant in his testimony before the Trial Court has specifically deposed that on 22.03.2016, he had sent a notice to the respondent on his both addresses demanding the amount of dishonoured cheque through his Advocate and the same was served on the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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