Case Note & Summary
The appellant, Vardhman Steel, filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 against the respondent, Sai Engineering, alleging that the respondent had purchased CRCA Steel Sheets worth Rs.1,25,052/- and issued a cheque which was dishonoured due to 'Account Closed'. The appellant sent a statutory demand notice under Section 138(b) of the Act. The learned Magistrate dismissed the complaint solely on the ground that the office copy of the notice filed by the complainant did not bear the signature of the complainant or his advocate, holding the service of notice invalid. The appellant appealed against this dismissal. The High Court framed the question whether the absence of signature on the office copy invalidates the service of notice. The court noted that the requirement under Section 138(b) is that the notice must be sent to the drawer, and the complainant must prove that the notice was actually sent and received. The court held that the absence of signature on the office copy is not a fatal defect and cannot be the sole ground for dismissal. The court allowed the appeal, set aside the Magistrate's order, and remanded the matter for fresh consideration on merits, directing the Magistrate to decide the complaint afresh without being influenced by the earlier order.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Statutory Notice - Section 138(b) - Validity of Service - The issue was whether the service of statutory demand notice can be invalidated solely because the office copy of the notice filed with the complaint lacks the signature of the complainant or his advocate. The court held that the absence of signature on the office copy does not invalidate the service of notice, as the requirement under Section 138(b) is that the notice must be sent to the drawer, and the complainant must prove that the notice was actually sent and received. The court allowed the appeal and set aside the dismissal order, remanding the matter for fresh consideration. (Paras 1-5)
Issue of Consideration
Whether service of statutory demand notice under Section 138(b) of the Negotiable Instruments Act, 1881 can be held invalid on the ground that the office copy of the said notice filed by the complainant does not bear the signature either of the counsel who sent the notice or of the drawee of the cheque.
Final Decision
The appeal is allowed. The order dated 30th November 2018 passed by the learned Judicial Magistrate First Class, Aurangabad in Summary Criminal Case No.3245 of 2016 is set aside. The matter is remanded back to the learned Magistrate for fresh consideration on merits. The learned Magistrate is directed to decide the complaint afresh without being influenced by the earlier order.
Law Points
- Service of statutory demand notice under Section 138(b) of the Negotiable Instruments Act
- 1881 cannot be held invalid merely because the office copy of the notice does not bear the signature of the complainant or his advocate
- provided the notice was actually sent and received by the drawer.
