Sign any notice before it is sent! Can a typed document in the form of a notice bearing neither signature nor any initial of an advocate or the complainant be called a notice in compliance with clause (b) of Section 138 of the Negotiable Instruments Act? The Bombay High Court has held that it is not.
Justice A.I.S. Cheema made this observation was considering an appeal preferred by the complainant against a trial court order acquitting the accused on the ground that he failed to show that he did have capacity to lend such huge amount to the accused.
The court, by referring to the notice which was produced as an exhibit, observed: “what could be said is that the unsigned typed paper was sent to the accused in the form of notice claiming to be from the advocate. When there is no signature of anybody, it appears difficult to find that there is compliance with clause (b) of Section 138 of the Act, which requires that notice should be given in writing. If the advocate was to write the notice in his own hand, or if the complainant was to write notice in his own hand and send in which signature remains, it could be still said to be notice of the advocate or the complainant. But when there is typed document in the form of notice with no signature (not even an initial) of anybody, it cannot be said to be a legal notice. Nobody could be said to own up the correctness of the contents.”
Upholding the trial court order acquitting the accused, the court held: “Going through the material, it does not appear that there were any such thick relations that the complainant should have parted with what he himself says to be a huge amount of Rs 1 lakh in favour of the accused. The complainant further failed to show that he did have capacity to lend such huge amount. The complainant is not corroborated by any other evidence other than his evidence that he had such money and did handover such money to the accused. In the cross-examination accused has shown that complainant has failed to show availability of such amount or capacity and also that there were no such relations to lend such huge amount. Thus the presumption putting onus on accused is rebutted.”
Read the Judgment here.