| Content Provider | Supreme Court of India |
|---|---|
| e-ISSN | 30484839 |
| Language | English |
| Access Restriction | NDLI |
| Subject Keyword | Negotiable Instruments Act S. 138 and Proviso (b) and (c) |
| Content Type | Text |
| Resource Type | Law Judgement |
| Jurisdiction | India |
| Case Type | Appeal |
| Court | Supreme Court of India |
| Disposal Nature | Appeal Allowed |
| Headnote | Negotiable Instruments Act; S.138 and Proviso (b) and (c):Dishonour of cheques - Complaint - Service of Notice - Requirements of - Held: S.138 of the Act contains a penal provision - Since the provision provides for a severe penalty, it warrants a strict construction - Service of notice is a statutory requirement for initiation of criminal proceeding - In terms of the provision, a Complaint Petition could be filed for commission of an offence by a drawee of cheque only fifteen days after the service of the notice to that effect - Complaint of notice required to be communicated to the drawee of cheques - In the instant case, employees of advocates of respondent allegedly served the notice which did not disclose complete facts about the service of notice to drawee of Cheques - Moreover, filing of complaint on May 9, 2000 after service of notice on May 7, 2000, was pre-mature - Hence, the complaint in question not maintainable as service of notice has not been effected in terms of the provision under Section 138 of the Act.Respondent filed a complaint against the appellants in the Court of Metropolitan Magistrate u/s. 138 of the Negotiable Instruments Act alleging, inter alia, that the cheques delivered by him have bounced. Cheques in question were admittedly issued on 16.3.2000. The memo in regard to non-payment of the cheques was received by the respondent from the bank on 16.3.2000. Legal notices were allegedly issued by them on 30.3.2000 through their Advocate intimating appellants about dishonour of the cheques and calling upon them to make payment of the amount of cheques. However, the notices were neither sent under registered cover with acknowledgement due nor even the couriers' service was availed. The notices were allegedly served by the employees/clerks of Advocates for the respondents. Relying on the purported statements made in the complaint petition as also the affidavits of the employees of Advocates, cognizance was taken by the Metropolitan Magistrate. Aggrieved, the appellants filed an application for recalling of the processes served on them on the premise that the requirements to comply with proviso (c) appended to Section 138 of the Act having not been complied with, issuance of summons was illegal. The application was rejected by the Magistrate. A Criminal Revision Application filed thereagainst before the Sessions Court by the appellant was allowed by the Sessions Court. A second revision was filed by the respondent before the High Court, which was allowed by it. Hence the present appeal.Appellant contended that keeping in view the provisions contained in clauses (b) and (c) of the proviso appended to Section 138 of the Negotiable Instruments Act, the impugned judgment of the High Court is not sustainable.Respondent submitted that the very fact that the appellants have changed their office as a result whereof service of notice could not be effected, the Magistrate has rightly taken cognizance of the offence; that affidavits have been affirmed by the clerks working with the advocates of the respondents and they were competent to serve notices upon the appellants which sub-serve the requirements of law; that non-availability of the appellants at their respective addresses would give rise to a presumption that they had been evading service of notice; and that while determining the issue this Court should take into consideration the quantum of the amount payable by the appellants to the respondents as also their conduct that they were defaulters to third parties and on that premise the impugned judgment may not be interfered with. |
| Judge | Hon'ble Mr. Justice S.B. Sinha |
| Neutral Citation | 2007 INSC 1038 |
| Petitioner | M/s. Sara V Investment & Financial Consultants Pvt. Ltd. And Anr. |
| Respondent | Llyods Register Of Shipping Indian Office Staff Provident Fund And Anr. |
| SCR | [2007] 10 S.C.R. 1110 |
| Judgement Date | 2007-10-11 |
| Case Number | 1424 |
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