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2000 Supreme(SC) 899
Supreme Court Of India
G.B. PATTANAIK AND U.C. BANERJEE, JJ
SHAKTI TRAVEL & TOURS Appellant;
Versus
STATE OF BIHAR AND ANOTHER Respondents.
Criminal Appeal No. 412 of 2000
Decided on April 28, 2000
A complaint under Section 138 of the Negotiable Instruments Act is not maintainable unless the statutory notice is served, as the accused must be granted 15 days from the date of service to make payment.
Headnote:(A) Negotiable Instruments Act - Section 138 - Service of notice - Maintainability of complaint - Accused has a right to pay the money within 15 days from the date of service of notice - If the complaint itself does not mention that the notice has been served, particularly on the assertions made within the complaint which indicate non-service, the complaint is not maintainable. (Para 2)
Facts of the case:
An appeal was filed challenging an order refusing to quash a complaint filed under Section 138 of the Negotiable Instruments Act. The appellant contended that based on the assertions made in the complaint, it was evident that the mandatory statutory notice had not been served, thereby rendering the complaint non-maintainable.
Findings of Court:
The court found that the right of the accused to pay the amount within 15 days from the date of service of notice is a prerequisite for the maintainability of a case under Section 138 of the Negotiable Instruments Act. Since the complaint did not state that the notice had been served and the expressions used in the complaint suggested otherwise, it was held to be not maintainable.
Issues: Whether a complaint under Section 138 of the Negotiable Instruments Act can be maintained if the complaint does not state that the statutory notice was served upon the accused.
Ratio Decidendi: Service of notice is a mandatory condition precedent under Section 138 of the Negotiable Instruments Act to allow the accused a statutory period of 15 days for payment; failure to establish the service of such notice renders the complaint non-maintainable.
Result: Appeal allowed.
Legal Category Hierarchy
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commercial law
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negotiable instruments
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cheque dishonour
- notice of demand
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cheque dishonour
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negotiable instruments
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practice and procedure
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criminal procedure
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complaint
- maintainability
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complaint
-
criminal procedure
Judgement :
(1) LEAVE granted.
(2) ACCUSED who is the Appellant, assails the order of the High Court refusing to quash the complaint filed under Section 138 of the Negotiable Instruments Act. The only ground on which the learned Counsel for the Appellant prays for quashing of the complaint is that on the assertions made in paragraph 8 of the complaint, it must be held that notice has not been served and, therefore, an application under Section 138 could not have been maintained. Undoubtedly, the accused has a right to pay the money within 15 days from the date of the service of notice and only when it fails to pay, it is open for the complainant to file a case under Section 138 of the Negotiable Instruments Act. That being the position and in the complaint itself having not been mentioned that the notice has been served, on the assertions made in paragraph 8, the complaint itself is not maintainable. We accordingly quash the complaint.
(3) THE appeal is accordingly allowed.
