NOTICE UNDER SECTION 138 of NEGOTIABLE INSTRUMENT ACT

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NOTICE UNDER SECTION 138 of NEGOTIABLE INSTRUMENT ACT

Yes, the demand notice is mandatory under section 138 of the NI Act; in Shakti Travel & Tours v. State of Bihar, (2002) 9 SCC 415 court observed that it is mandatory to serve the notice for maintainability of case of cheque bounce. In a case where a cheque bounced and notice is not served and a complaint is filed under section 138 or in a case where a notice is served however, a complaint has been filed before the completion of 15 days provided in section 138 (c) will result in non-compliance of the procedure provided under the law.

WHO CAN FILE A COMPLAINT UNDER SECTION 138 OF NI ACT?

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WHO CAN FILE A COMPLAINT UNDER SECTION 138 OF NI ACT?

A complaint under section 138 can be filed by a natural person or by an artificial or legal person, legal heirs or representative in case of death of the complainant for enforcement of rights. Section 138 of the Act “the payee or the holder in the due course of the cheque makes demand of the amount specified in the cheques which is bounced and not paid even after sending demand notice as directed in section 138 clause (b) to the drawer of the cheque.

ESSENTIALS OF SECTION 138 OF NEGOTIABLE INSTRUMENT ACT

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ESSENTIALS OF SECTION 138 OF NEGOTIABLE INSTRUMENT ACT

There are certain key elements which need to be present to file a complaint under section 138 of the NI Act without the same a complaint under section 138 is not maintainable. Moreover, the magistrate who is empowered to take cognizance under section 142 on the said complaint will be barred by the law to proceed and take cognizance. The apex court in Kusum Ingots & Alloys Ltd. (supra) court ascertained and emphasized the ingredients of section 138 of the NI Act as under in para 10:

COMPLAINT UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENT ACT

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COMPLAINT UNDER SECTION 138 OF NEGOTIABLE INSTRUMENT ACT

Three judges bench in Yogendra Pratap Singh (supra) overruled Narsingh Das (supra) and upheld Sarav Investment (supra) therefore it could be inferred that any complaint filed before completion of 15 days as prescribed under section 138 (c) is not maintainable and further remedy is to file a fresh complaint within the time prescribed under section 142(b) and in a case where no time left as specified under section 142(b) recourse is the proviso which was added with amendment as aforesaid thereby specify reason for delay in filing complaint.  

SECTION 138 OF NEGOTIABLE INSTRUMENT ACT

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SECTION 138 OF NEGOTIABLE INSTRUMENT ACT

Section 138 of negotiable instrument Act, 1881 (herein after mentioned as NI Act) deals with the settlement of discord which arises in case where cheque, which is for the payment of certain liability, has been dishonored or bounded because of the reasons articulated in the said section. Section 138 also impose punishment in case of such return of cheque unpaid from the bank. Section 138 stipulates certain pre requisites for the applicability of the said section and to avail the remedy. Present blog will cover all those essentials of section 138 of NI Act.

CBI vs. R.R. KISHORE

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CBI vs. R.R. KISHORE

Whether Section 6A of the DSPE Act is part of procedure or it introduces a conviction or sentence?

Whether Article 20 (1) of the Constitution will have any bearing or relevance in the context of declaration of Section 6 A of the DSPE Act as unconstitutional?

 The declaration of Section 6A of the DSPE Act as unconstitutional and violative of Article 14 of the Constitution would have a retrospective effect or would apply prospectively from the date of its declaration as unconstitutional? Or whether there can be a deprivation of immunity provided under Section 6A (1) of DSPE Act 1946 by a retrospective operation of a judgment (SUBRAMANIAN SWAMY) of constitution bench, in the context of Article 20 of the Constitution of India?

EXCEPTIONS OF RES JUDICATA

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EXCEPTION OF RES JUDICATA

Section 11 of the Civil procedure code is law on res judicata which infers the bar on the court to try any suit or proceedings in which matter which is directly and substantially in issue has also been directly and substantially in issue in the former suit and which has been finally heard and decided by the court of competent jurisdiction. Section 11 is appended with VIII explanations all has already been discussed in earlier blogs along with the controversy concerning section 11 and explanation VIII. When all the requisites of section 11 are substantiated, the plea of res judicata will oust the court’s jurisdiction to try the subsequent suit or proceeding. There are certain circumstances where plea res judicata is not considered in the subsequent suit which are as under. Following are exceptions of res judicata.

RES JUDICATA SECTION 11 AND EXPLANATION VIII

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EXCEPTION OF RES JUDICATA

CONCLUSION:
The objective of both section 11 and the explanation VIII of section 11 of CPC is same that is to avoid multiplicity of proceedings and no man shall be vexed twice for the same offence moreover there must be an end to litigation. Therefore, the phrase “court of limited jurisdiction” in explanation VIII is wide enough to include court of limited pecuniary jurisdiction. It could be construed that even when a former court is not competent to try the subsequent issue due to lack of pecuniary jurisdiction res judicata will be operative irrespective of general rule that is administered in section 11.

DARYAO vs. STATE of U.P.

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DARYAO vs. STATE of UP

If a writ under Article 226 is decided on merits and dismissed, decision will continue to survive until same is reversed or modified by an appeal or other appropriate proceedings permissible;

If writ is dismissed not on merits but on ground of laches or that alternative remedy is available will not attract plea of res judicata as the court has not applied its mind and matter not decided on merits, a speaking order is necessary to establish the essentials of res judicata;

Rule of res judicata bar another writ under Article 32 on the on the same facts to claim same relief;

Writ dismissed under Article 226 in limine there res judicata will not be operative if the order is not passed on merits or there is no speaking order at all passed by the court;

APPLICABILITY OF RES JUDICATA

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EXCEPTION OF RES JUDICATA

Res judicata is applicable once the conditions stipulated under section 11 of CPC are established. Res judicata is not a bar on the party to initiate a proceeding against the other party in fact it precludes the court from trying any suit or an issue. Therefore, the res judicata is not applicable to the subsequent suit when the former is decided by the competent court in fact the same is applicable at the different stages of the same suit. Despite the operation of res judicata on all the civil suits and issues of the said suit, the question is whether the said principle is applicable in the case of public interest litigation and writs under Articles 32 and 226 of the Constitution of India and criminal proceedings.

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