Check Bounce Section 138 NI Act Demand notice sent through email/Whatsapp is valid: Allahabad High Court

Recently, Allahabad High Court held that demand notice sent through email/Whatsapp is valid. A bench of Justice Arun Kumar Singh Deshwal was hearing an application filed for quashing of proceedings in a case registered under Section 138 of the Negotiable Instruments Act, 1881.

The bench said that a notice sent through ’email or WhatsApp’ will be deemed to have been sent and sent on the same date, if it satisfies the requirements of Section 13 of the IT Act, 2000.

In this matter. Applicant’s lawyers Sunil Kumar and Chandan Singh argued that the Supreme Court Questions AAP Over is defective as it was filed within 15 days of notice in violation of the legal requirement. After the check bounced on 13.07.2022, a legal notice was sent on 23.07.2022. The complaint filed on 31.08.2022 lacks specified date of notice service.

Counsel further argued that under Section 27 of the General Provisions Act, 1977. 30 day assumption applies. In which it has been suggested that the complaint should be filed 45 days after the notice.

State AGA Padmakar Rai has argued that it is a settled legal position of law that it is not necessary to mention in the complaint and defense the date of service of the notice sent by the complainant on the check issuer whether the notice has been given or not when the check is issued. Whether the person making the decision was served or not. This can be considered during the trial, and it cannot be a case for quashing of the complaint proceedings under the Act of 1881.

The issues before the bench were:

Whether a complaint filed before the expiry of fifteen days from the date of service of notice is defective under clause (c) of the proviso to section 138 of the Negotiable Instruments Act?

Is it required by law to mention the date of service of notice to the payer in the complaint filed against him under section 138 NI Act?

The bench took note of Section 4 of the IT Act, which provides that, notwithstanding anything contained in any such law, which provides notice in writing. The writing shall also include a notice provided or made available in electronic form, which must be available for subsequent reference. The term ‘electronic form’ has been defined in section 2(1)(r) of the IT Act. Which media, magnetic, optical, computer memory. Microfilm provides any information generated, sent, received or stored in computer-generated microfiche or. Similar equipment.

According to the Court, the notice referred to in section 138 NI Act will also include email or WhatsApp if it remains available for later reference.

The High Court held that “.if no date of service is mentioned in the complaint, the court may assume the same under Section 114 of the Evidence Act and Section 27 of the General Clause.” Notice of the Act shall be served within ten days from the date of its dispatch. However, it is always open for the issuer of the check to accept the plea during the trial. But he was never given notice.”

The bench said that as per the complaint, a notice was sent by the complainant to the opposite party no. 2 on 23.07.2022. so. After considering ten days of service of notice to the applicant. 15 days will be counted from August 2, 2022. Within which the applicant will have to pay the check amount demanded in the notice. After this, complaint can be lodged after 17.08.2022. The complaint was filed on 31.08.2022. Therefore, the complaint under clause (c) of the provision of Section 138 as well as under Section 142(1)(b) of the NI Act was not defective.

The High Court in M/s Ajit Seeds vs. K. Cited the case of Gopal Krishnaiah, where the apex court had held that “it is necessary to state in the complaint that even if the notice is returned unserved, it will be deemed to have been served.” or the addressee has knowledge of the notice as it is a matter of evidence, and there is a presumption of service of registered post under section 27 of the Evidence Act.

The bench said that there is no legal requirement to mention the date of service of notice on the issuer of the check in the complaint. If the notice was sent through registered post. So the presumption will be made under section 27 of the General Clause.