Searching Case Laws & Precedent on Legal Query.....!
Analysing the retrieved Case Laws
Scanned Judgements…!
Searching Case Laws & Precedent on Legal Query.....!
Analysing the retrieved Case Laws
Scanned Judgements…!
Service of Notice by Publication - The law under Section 138 of the Negotiable Instruments Act (N.I. Act) does not explicitly provide for service of demand notice to the accused by publication in a newspaper. The prescribed method is sending a legal notice through registered post or other recognized modes, and proof of such service is essential. Shailandra Kumar Tandi S/o Nityanand Tandi VS Mangal Ram S/o Jivdhan - Chhattisgarh, Patel Somabhai Vithalbhai VS State Of Gujarat - Gujarat
Mandatory Nature of Notice - Sending a demand notice within 30 days of dishonour is a crucial element for establishing the offence under Section 138. Failure to serve proper notice, such as by publication, can invalidate the cause of action. The courts have emphasized that the notice must be properly proved to have been received by the accused, typically via registered post. Shailandra Kumar Tandi S/o Nityanand Tandi VS Mangal Ram S/o Jivdhan - Chhattisgarh, Patel Somabhai Vithalbhai VS State Of Gujarat - Gujarat, Dashrathbhai Trikambhai Patel VS Hitesh Mahendrabhai Patel - Supreme Court
Legal Precedents and Court Rulings - Courts have consistently held that publication in a newspaper cannot substitute for proper service of notice. The complainant must demonstrate that the accused received the demand notice, which is a mandatory requirement. If notice is not properly served, the complaint under Section 138 may be dismissed. Shailandra Kumar Tandi S/o Nityanand Tandi VS Mangal Ram S/o Jivdhan - Chhattisgarh, Sundar Annasaheb Kamble vs Sandeep, S/o. Tanaji Ghodake - Karnataka, Patel Somabhai Vithalbhai VS State Of Gujarat - Gujarat
Conclusion - A complainant cannot claim service of notice to the accused by publication in a daily newspaper as a valid method under Section 138 of the N.I. Act. Proper service through registered post or similar recognized means is necessary to satisfy legal requirements and to sustain a prosecution for dishonour of cheque. Failure to prove such service can lead to dismissal of the case.
In the world of business transactions, cheques remain a common payment method despite digital alternatives. However, when a cheque bounces due to insufficient funds, the payee must follow strict legal steps under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) to pursue remedies. One frequent question arises: Can a Complainant Claim Service of Notice to the Accused about Dishonour of Cheque by Publication in a Daily Newspaper for Offence under Section 138 of Negotiable Instrument Act?
The short answer is no. Courts have consistently ruled that newspaper publication alone does not constitute proper service of the mandatory demand notice. This blog post dives deep into the legal requirements, key case laws, and practical recommendations to help you navigate this crucial aspect of cheque dishonour cases. Note: This is general information based on judicial precedents and not specific legal advice. Consult a qualified lawyer for your situation.
Section 138 criminalizes the dishonour of a cheque due to insufficient funds or other specified reasons, provided certain conditions are met. After receiving bank information about the dishonour, the payee or holder must:
The demand notice is the cornerstone of the offence. Without proper service, no cause of action arises, and proceedings may be quashed. Salvaji Prabhakar Rao VS State of A. P. - 2006 0 Supreme(Bom) 493
The notice serves to alert the drawer of the dishonour and give them a chance to rectify it. Courts emphasize that service must be personal or via registered post with acknowledgment due. A presumption of service arises if sent correctly by registered post to the drawer's known address, unless rebutted. Kanhaiya Lal VS State of U. P. - Dishonour Of Cheque (2010)Uniplas India LTD. VS State (N. C. T. ) Of Delhi - 2001 5 Supreme 161
Some complainants resort to publishing notices in newspapers, especially if they can't locate the accused or suspect evasion. However, this is not a substitute for statutory service.
In a key judgment, the court observed: While exercising powers under Section 482 of the Code of Criminal Procedure prima facie the allegation made in the complaint it is clear that straightaway publication was made in Eenadu Newspaper this cannot be said to be in compliance with any of the statutory provisions of the N.I. Act. Salvaji Prabhakar Rao VS State of A. P. - 2006 0 Supreme(Bom) 493
Publication lacks the legal presumption of delivery. It doesn't prove the accused saw or received it, failing the NI Act's intent. Courts have ruled similarly: publication in a newspaper cannot be treated as a valid notice for Section 138 offences. Uniplas India LTD. VS State (N. C. T. ) Of Delhi - 2001 5 Supreme 161
From other precedents, even if a cheque is issued by a firm, the complainant must serve notice properly on the drawer—publication won't suffice. Patel Uveshbhai Mohmadsalim VS State Of Gujarat - 2021 Supreme(Guj) 385 - 2021 0 Supreme(Guj) 385Navinbhai Hargovindbhai Patel VS State of Gujarat - 2017 Supreme(Guj) 789 - 2017 0 Supreme(Guj) 789
Generally, publication alone is invalid. However:
Without proof of receipt, reliance on publication risks quashing under Section 482 CrPC. Salvaji Prabhakar Rao VS State of A. P. - 2006 0 Supreme(Bom) 493
Post-notice, if unpaid, file under Section 200 CrPC. Ingredients include:- Cheque dishonour report.- Demand notice sent within time.- Non-payment within 15 days. Subir Sarkar VS Sk. Anisur Rahaman - 2023 Supreme(Cal) 435 - 2023 0 Supreme(Cal) 435Suresh Kumar Goyal VS Darshan Singh - 2023 Supreme(P&H) 2653 - 2023 0 Supreme(P&H) 2653
Courts summon accused only if prima facie case exists, including proper notice. Ved Parkash VS Babu Ram Sharma - 2024 Supreme(HP) 248 - 2024 0 Supreme(HP) 248
Even if complaints are filed, payment post-filing may quash them, but improper initial notice dooms the case. Anju VS Ram Gupta - 2024 Supreme(P&H) 673 - 2024 0 Supreme(P&H) 673
To strengthen your Section 138 case:
Failure here can lead to acquittal or quashing, as seen where accused disproved service. Vijayalaxmi W/O Mallikarjun Nagundi VS Shanker Kodla S/O Late Kashappa Kodla - 2021 Supreme(Kar) 506 - 2021 0 Supreme(Kar) 506
For firm-issued cheques, complainants can target the firm alone under Section 138, without partners, mirroring tax laws. But notice service rules apply uniformly. Patel Uveshbhai Mohmadsalim VS State Of Gujarat - 2021 Supreme(Guj) 385 - 2021 0 Supreme(Guj) 385Murjibhai Vishram Varsani VS Adam Alimamad Kumbhar - Dishonour Of Cheque
A complainant cannot validly claim service of notice solely through newspaper publication under Section 138 NI Act. Stick to registered post or personal service to invoke the legal presumption and sustain prosecution. Improper service undermines even strong dishonour evidence.
Key Takeaways:- Mandatory Modes: Registered post or personal—publication invalid. Salvaji Prabhakar Rao VS State of A. P. - 2006 0 Supreme(Bom) 493Uniplas India LTD. VS State (N. C. T. ) Of Delhi - 2001 5 Supreme 161- Presumption Aids: If properly sent, service presumed unless rebutted. Kanhaiya Lal VS State of U. P. - Dishonour Of Cheque (2010)- Risk of Dismissal: Courts quash for non-compliance.- Best Practice: Always prove service meticulously.
Stay compliant to protect your rights in cheque transactions. For tailored advice, reach out to a legal expert.
Section 138 of Negotiable Instrument Act, 1881 (for short ‘N.I.Act’). 3. For the sake of convenience, the parties are referred to as per their ranking before the trial Court. The petitioner is the accused and respondent is the complainant. ... Hence, complainant filed a private complaint under Section 200 of Cr.P.C ....
Act - Acquittal Appeal - Section 138 - 138(b) - 139 - 142(1)(b) - 142(1)(c) - 118 - 139 Fact of the Case:/ ... As per mandatory provisions of N.I. Act, notice regarding demand for cheque in question has not been sent by complainant to accused. Therefore, no cause of action has arisen in favour of complainant and against accused regard....
138 will stand attracted – Conditions stipulated in provisos to Section 138 need to be fulfilled in addition to ingredients in substantive ... Negotiable Instruments Act 1881 – Section 138 read with Section 56 – Dishonour of cheque – If drawer of ... part of Section 138 – First respondent has made part-payments after debt was incurred and before cheque was encashed upon....
Criminal Procedure Code, 1973 – Section 200 – Negotiable Instrument Act – Section 138 – Dishonour of Cheque ... to an offence under Section 138 of the Act. ... Thereafter the complainant sent a legal notice on October 22, 2018, as per provisions of Section 138 of Negotiable Instruments Act requestin....
... ... Ratio Decidendi: The court ruled that once the cheque amount is paid, the liability under Section 138 of the NIA ceases, ... 138 was not maintainable. ... 138 ceases - Complaint quashed. ... It is a well settled proposition of law that once the complaints under section 138 of NI Act have been filed against the accused then in that eventuality ....
Accused failed to make payment of the cheque amount within stipulated period despite legal notice sent to him prior to filing of the complaint and so, all ingredients to constitute offence under section 138 NI Act stand established. ... Court to convict the accused under section 138 of NI Act. ... A....
(A) Negotiable Instruments Act, 1881 - Section 138 and Section 139 - Criminal Procedure Code, 1973 - Section 313 - Cheque dishonoured ... The cheque was dishonoured due to insufficient funds after a notice for payment was sent, leading to a complaint under Section 138 ... Learned Trial Court found sufficient reasons for summoning the accused. When the accused appeared, a notice....
It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved ... Considering the ....
At the outset, the provisions of Sections 138 and 142 of the NI Act are required to be seen, which read as under: “138. Dishonour of cheque for insufficiency, etc., of funds in the account. ... they returned dishonoured; therefore the legal notice was issued but as no reply was given, the complainant filed the impugned complaint under Sections 138 and ....
138 of N.I. ... falsify case of prosecution - Therefore, Trial Court has rightly convicted the respondent – accused for offence punishable under Section ... Dn) and JMFC, Gulbarga convicting the respondent – accused for the offence punishable under Section 138 of the Negotiable Instrument Act (for short ‘N.I. Act’), ....
It appears from documents and submissions that due to COVID-19 Pandemic and the reasons assigned in para 4 of the petition for the reasons or the other, petitioners could not cross-examine the witness, therefore, right to cross-examine the complainant has been closed by the trial Court. 3. Precisely stated facts of the case are that complaint has been filed by the respondent for offence under section 138 of the Negotiable Instrument Act against the petitioners/accused on premise of d....
The complainant may choose not to proceed against the individual partners as accused either because he is not aware as to who are the partners or is not interested in proceeding against the partners apart from the firm. It is perfectly possible for a complainant, aggrieved by the dishonour of a cheque issued by or behalf of a firm, to file a complaint for the offence under Section 138 Negotiable Instruments That is how under various statutes like the Income Tax Act 1961, the ....
That is how under various statutes like the Income Tax Act 1961, the Central Excises Act 1944, the Sales Tax Laws and Section 141 Negotiable Instruments Act, a firm can be proceeded against as such. It is perfectly possible for a complainant, aggrieved by the dishonour of a cheque issued by or behalf of a firm, to file a complaint for the offence under Section 138 Negotiable Instruments The complainant may choose not to proceed against the individual partners as accused eithe....
That is how under various statutes like the Income Tax Act 1961, the Central Excises Act 1944, the Sales Tax Laws and Section 141 Negotiable Instruments Act, a firm can be proceeded against as such. The complainant may choose not to proceed against the individual partners as accused either because he is not aware as to who are the partners or is not interested in proceeding against the partners apart from the firm. It is perfectly possible for a complainant, aggrieved by the dishonou....
It is perfectly possible for a complainant, aggrieved by the dishonour of a cheque issued by or behalf of a firm, to file a complaint for the offence under Section 138 Negotiable Instruments That is how under various statutes like the Income Tax Act 1961, the Central Excises Act 1944, the Sales Tax Laws and Section 141 Negotiable Instruments Act, a firm can be proceeded against as such. The complainant may choose not to proceed against the individual partners as accused eithe....
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