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Section 138 NI Act: Omission To Mention Nature Of Debt Or Liability In Notice Does Not Render It Invalid: Kerala HC [Read Order]

LIVELAW NEWS NETWORK
30 May 2019 1:01 PM GMT
Section 138 NI Act: Omission To Mention Nature Of Debt Or Liability In Notice Does Not Render It Invalid: Kerala HC [Read Order]
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"There is no requirement that the complainant must specifically allege in the complaint that there was a subsisting liability.”
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The Kerala High Court has observed that the omission or error in the notice under section 138 of the Negotiable Instruments Act to mention the nature of the debt or liability, does not render it invalid.

Justice R. Narayana Pisharadi also observed that there is no statutory requirement that the complainant must specifically allege in the complaint that there was a subsisting liability.

In B. Surendra Das vs. State of Kerala, the court was considering a petition seeking to quash the criminal proceedings on the ground that no demand for payment of the amount of the cheque was made by the complainant as per the notice sent by him and therefore, the notice is defective and the proceedings initiated against the accused pursuant to such notice cannot be sustained.

Perusing the contents of the notice, the court said that it has stated that the complainant is legally entitled to realize the amount of the cheque from the petitioner and that the petitioner is legally bound to pay the amount of Rs.35,00,000  to the complainant within 15 days from the date of the notice.

The court rejected the contention that the nature of the debt or liability of the accused is not mentioned in the notice and for that reason, the notice is defective. The court said:

"There is no statutory mandate that the notice shall narrate the nature of the debt or liability. Therefore, the omission or error in the notice to mention the nature of the debt or liability, does not render it invalid. It is also to be noted that the nature of the debt is disclosed in the complaint."

It was also contended that there is no specific averment in the complaint that the cheque was issued in discharge of the amount allegedly borrowed by him from the complainant. Refusing to quash the complaint, the court said:

"There is no need to make such a specific averment in the complaint. There is no requirement that the complainant must specifically allege in the complaint that there was a subsisting liability."

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