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1 - 7 of 7 (0.19 seconds)Section 138 in The Negotiable Instruments Act, 1881 [Entire Act]
Section 27 in The General Clauses Act, 1897 [Entire Act]
The Negotiable Instruments Act, 1881
Section 141 in The Negotiable Instruments Act, 1881 [Entire Act]
K. Bhaskaran vs Sankaran Vaidhyan Balan And Anr on 29 September, 1999
4. Coming to the plea that there was no cause of action in favor of respondent-complainant as no notice under Section 138(b) of the Act was served upon the petitioners, this Court finds that in Para 8 of the complaint it was specifically alleged by the petitioners that notice of demand in terms of Section 138(b) of the Act was served upon the respondents by Regd. A.D as well as Under Postal Certificate dated 14.10.1993 and since the accused failed to make payment within a period of 15 days of the receipt of the notice the complaint was being filed. The cheque in question was dis-honoured vide Memo dated 29.9.1993. It was returned to the complainant on 1.10.1993 and a notice of demand under Section 138(b) of the Act was sent to the petitioners on 14.10.1993. The complaint was filed on 26.11.1993. The Supreme Court in the case State of Madya Pradesh Vs. Hira Lal & Ors as well as in K. Bhaskaran Vs. Sankaran Vaidhyan Balan and another has categorically held that the reports" not available" " house locked" " shop closed" etc. have to be deemed as service upon the drawer and by manipulating such reports a drawer cannot to be permitted to circumvent a prosecution under Section 138 of the Act. The burden is on the drawer to establish that he had not received the notice. The Act does not provide a specific mode of service of notice under Section 138 of the Act and as such a notice can be sent under Postal Certificate also. If the notice is correctly addressed to the addressee a presumption under Section 27 of the General Clauses Act may be drawn in favor of service. This presumption is rebuttable but it is always a question for adjudication in the course of trial. The summons issued under Section 138 of the Act cannot be challenged at the threshold by raising such pleas. The principles incorporated in Section 27 of the General Clauses Act can be profitably imported in a case where the sender has dispatched a notice by post with correct address written on it. Therefore, the learned Trial Judge was fully justified in holding that at this stage it was not possible to hold that no notice under Section 138(b) of the Act was served upon the petitioners and as such the complaint was not maintainable. If notice under Section 138(b) of the Act is ultimately proved to have been served upon the petitioners the complainant would be well within time as it was filed within the statutory period prescribed under Section 138 of the Act.
State Of Madhya Pradesh vs Phodal Hira And Ors. on 28 August, 1970
4. Coming to the plea that there was no cause of action in favor of respondent-complainant as no notice under Section 138(b) of the Act was served upon the petitioners, this Court finds that in Para 8 of the complaint it was specifically alleged by the petitioners that notice of demand in terms of Section 138(b) of the Act was served upon the respondents by Regd. A.D as well as Under Postal Certificate dated 14.10.1993 and since the accused failed to make payment within a period of 15 days of the receipt of the notice the complaint was being filed. The cheque in question was dis-honoured vide Memo dated 29.9.1993. It was returned to the complainant on 1.10.1993 and a notice of demand under Section 138(b) of the Act was sent to the petitioners on 14.10.1993. The complaint was filed on 26.11.1993. The Supreme Court in the case State of Madya Pradesh Vs. Hira Lal & Ors as well as in K. Bhaskaran Vs. Sankaran Vaidhyan Balan and another has categorically held that the reports" not available" " house locked" " shop closed" etc. have to be deemed as service upon the drawer and by manipulating such reports a drawer cannot to be permitted to circumvent a prosecution under Section 138 of the Act. The burden is on the drawer to establish that he had not received the notice. The Act does not provide a specific mode of service of notice under Section 138 of the Act and as such a notice can be sent under Postal Certificate also. If the notice is correctly addressed to the addressee a presumption under Section 27 of the General Clauses Act may be drawn in favor of service. This presumption is rebuttable but it is always a question for adjudication in the course of trial. The summons issued under Section 138 of the Act cannot be challenged at the threshold by raising such pleas. The principles incorporated in Section 27 of the General Clauses Act can be profitably imported in a case where the sender has dispatched a notice by post with correct address written on it. Therefore, the learned Trial Judge was fully justified in holding that at this stage it was not possible to hold that no notice under Section 138(b) of the Act was served upon the petitioners and as such the complaint was not maintainable. If notice under Section 138(b) of the Act is ultimately proved to have been served upon the petitioners the complainant would be well within time as it was filed within the statutory period prescribed under Section 138 of the Act.
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