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2019 (10) TMI 299 - HC - Indian LawsDishonour of cheque - Service of statutory demand notice - Whether service of statutory demand notice as contemplated under Section 138(b) of the Negotiable Instruments Act, 1881, on the drawer of the cheque can be held invalid on the ground that the office copy of the said notice filed by the complainant alongwith the complaint under Section 138 of the N.I.Act’, does not bear the signature either of the counsel, who sent the said notice or of the drawee of the cheque? HELD THAT:- The Honourable Apex Court [2012 (12) TMI 154 - SUPREME COURT] has held that the complaint under Section 138 of the N.I.Act, without signature can be maintained when such a complaint is verified by the complainant and the Process is issued by the Magistrate after due verification It is quite obvious that only after noticing that the office copy filed alognwith the complaint is unsigned, the respondent has cleverly raised a defence of non-compliance of the provisions under Section 138(b) of the N.I.Act. Had the office copy be bearing signature either of the party or his Advocate, perhaps the respondent may not have taken any such defence. It is thus evident that, to defeat the claim of the complainant, the respondent had raised a technical plea that there was no compliance of Section 138(b) of the N.I.Act and therefore the complaint was not maintainable. Unfortunately, the technical plea so raised prevailed with the learned Magistrate and resultantly the complaint was dismissed by the Trial Court. There is no hesitation in holding that the Trial Court has grossly erred in dismissing the complaint filed by the present appellant under Section 138 of the N.I.Act, on the ground that the office copy of the statutory mandatory notice as contemplated under Section 138(b) of the N.I.Act, filed alongwith complaint was not signed either by the complainant or his Advocate. The impugned Judgment and order, therefore, cannot be sustained and deserves to be set aside - appeal allowed.
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