validity of notices
is notic send in 138 case via e-mail is valid?
The NIA contains provisions for dealing with dishonoured cheques u/s 138. This section requires the giving of a demand notice for invoking the cause of action. If the complainant before the court does not assert that demand notice has been served, the complaint is not maintainable.
Section 138 (b) reads as: the payee or the holder in due course of the cheque as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
Therefore, Section 138 does not prescribe any particular mode of demand notice and it merely requires a “notice in writing” and e-mail satisfies that requirement in the most efficient manner. This has made this section very flexible and it can accommodate the developments of information technology. Thus, a demand notice can be sent through the mode of registered post, e-mail, fax etc and there cannot be any objection for the same.
The NIA contains provisions for dealing with dishonoured cheques u/s 138. This section requires, among other things, the giving of a demand notice for invoking the cause of action. If the complainant before the court does not assert that demand notice has been served, the complaint is not maintainable. The mere “giving” of the notice will, however, not give rise to the cause of action but the same will begin only if the notice has been “received” by the drawer of the cheque. Thus, the cause of action begins where the receipt of the demand notice by the concerned party accompanies the proven fact of giving of notice. If any one of them is missing, there will not be a legal cause of action.
Section 138 of the NIA prima facie does not prescribe any particular mode of notice being served to the defaulter of the cheque; rather it merely says a “notice in writing”. Through these words, the section has become very flexible ait can accommodate demand notices that can be sent via the means of e-mail, registered post and fax and there wouldn’t be any objection per se.
The notice which is sent to the defaulter does not have to be in any prescribed format or a manner of sending. Simply put, the purpose of the notice is to make the person aware that his cheque has bounced and he should pay up for that. It is not even required to be sent through a lawyer but it is very important that a counsel sends it so that there isn’t anything left out.
It is paramount that the person should receive the notice. In one of the rulings, Bombay High Court has recently even held that this notice can also be sent via email. Once the person receives the notice, he should pay up the amount within 15 days of receiving the notice. If he doesn’t, then the person issuing notice has 30 days to initiate proceedings before a Magistrate.
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