Under Section 138 NI Act A Demand Notice Need Not Be Sent Through An Advocate: Tripura HC [Read Judgment]

The Tripura High Court on April 25, 2019, in the case of Subal Chandra Ghosh v. The State of Tripura, has held that under Section 138 of the Negotiable Instruments Act, 1881, there is no requirement that the demand notice is to be sent through an advocate. The payee or the holder of the cheque can make the demand in writing.

The judgment was passed by Justice Arindam Lodh on a revision application in which one of the issues raised was on the legality of the demand notice. It was contended before the court that demand notice did not contain the signature of the advocate who served it and thus it did not confirm the requirements of Section 138 of the Negotiable Instruments Act, 1881.

The court while hearing the case took note of the fact that the demand notice, though printed in a letter pad of an Advocate, contain the endorsement of the complainant as he put his signature on every page of the notice being the holder of the cheques.

The court observed that “The language of proviso-B of Section 138 is very plain and simple and it does not speak about that the notice is to be sent through advocate. It is the payee or the holder who will make the demand in writing.”

Two judgments which were relied on to contend that this notice does not confirm the requirements of Section 138 NI Act., are Suman Seth v. Ajay K. Churiwal and Rahul Builders v. Arihant Fertilizers & Chemicals. To this, the court observed that “Neither in Rahul Builders (Supra) nor in Suman Sethi (Supra) the Apex Court has held that the notice have to be served through only the Advocate. The said authorities only laid the principles that the ingredients of Section 138 of N.I. Act have to be followed and the contents about the amount of the cheque and demand of cost, interest and other expenses must be in specific terms to subserve the requirements of Section 138 of the N.I. Act.”

Thus answering the said issue in favour of the complainant, along with the other issues, the court held that the case of dishonour of cheques is successfully made out.

[Read Judgment]