While Covid-19 rages and ravages within the outside, there’s additionally
a substantial amount of turbulence indoors with the restricted functioning
of courts, a obligatory evil in such tumultuous occasions. However, to
mitigate the antagonistic results of the closure of courts, the
Hon’ble Supreme Court of India vide order dated 23.03.2020
handed in Suo Moto (Civil) Writ Petition No. 3 of 2020
held that the interval of limitation in all proceedings, irrespective
of the limitation prescribed below the overall legislation or particular legal guidelines
whether or not condonable or not shall stand prolonged with impact from
15.03.2020 until additional orders handed by the Hon’ble Apex
Court itself. Since there have been some lacunae within the order dated
23.03.2020, the Suo Moto Writ Petition was listed once more
a number of occasions and modifications had been made.

On 17.07.2020, the Hon’ble Supreme Court catapulted
a number of steps ahead with respect to the style of service of
notices together with a statutory demand discover for the dishonour of
cheque below Section 138 of the Negotiable Instruments Act, 1881.
The Hon’ble Supreme Court allowed service via the modes
of e mail, fax and generally used instantaneous messaging companies (topic
to service moreover via e mail when instantaneous messaging
companies are utilized).

Demand notices below Section 138 until the current day at all times lay
below a cloud of ambiguity with no readability as to acceptability
via e mail. Further, for the reason that issuance of the identical is a
statutory prerequisite to the submitting of felony criticism, authorized
professionals at all times choose to stroll the fail-safe path of service
of a tough copy. Adding to that the dearth of judicial precedent on
service via digital modes, there was not a lot scope for
creativity. Further, since service needs to be effected via a
discover issued inside 30 days of dishonour of cheque, it led to many
unscrupulous drawers of such dishonoured cheques to easily evade
service via intelligent and conniving means for a brief interval of
one month they usually had been free from the felony legal responsibility related
with the Negotiable Instruments Act, 1881. While this challenge of
evasion of service has been addressed and mentioned in loads of
judgments and sure safeguards granted, no concrete decision
got here to the fore.

It is additional worthwhile to debate right here that newer legislations
such because the Insolvency & Bankruptcy Code, 2016 whereby service
of demand discover can also be a statutory requirement, specify the
numerous modes via which service will be affected. The identical
contains e mail as nicely even going to the extent that it’s
specified who the legitimate recipients of the e-mail could be so as
to deem completion of legitimate service. However, no amendments had been
made to the Negotiable Instruments Act, 1881 to incorporate service
via various modes.

Since the arrival of recent expertise and simple accessibility, it
made no logical sense that service via digital means would
be rendered invalid even earlier than the route of the Hon’ble
Apex Court. As there’s a strict timeline for completion of the
service of demand discover within the case of a dishonoured cheque, it
additionally appears unreasonable that the intention of the legislators was
to limit the timeline additional by half a day i.e. until the top of
the working day of the closest put up workplace. A 30-days timeline
signifies that the aggrieved occasion ought to be granted a possibility
until the top of the 30^th day by the clock to safeguard
its rights and pursuits in opposition to the felony breach by the
accused.

While via a authorized fiction, the dishonour of cheque has been
mounted with felony legal responsibility in impact, any interpretation
which might limit the service of discover to solely via a
bodily mode would render the treatment virtually ineffective. In
assist of the above comes the Information Technology Act, 2000
which was enacted with the aim of granting authorized recognition to
transactions carried out via digital modes. It wouldn’t be
remiss right here to consult with Section 4 of the IT Act which reads as
beneath:

While the above part seemingly gives a blanket allowance
to all written authorized communications, the identical is to be learn in
consonance with the First Schedule to the Act which specifies the
paperwork or transactions to which the IT Act is not going to apply. The
mentioned Schedule clearly states that the Act doesn’t apply to
“A negotiable instrument (aside from a cheque) as outlined
in part 13 of the Negotiable Instruments Act, 1881 (26 of
1881)”. The above results in the conclusion that the
provisions of the IT Act would apply to cheques and therefore authorized
motion be initiated in respect of dishonour of cheque.

In mild of the above-detailed info and circumstances, it’s
amply clear that the intention of the legislature was by no means to
limit the service of demand notices for dishonour of cheques to
solely bodily modes. But because of the lack of an express modification
within the Negotiable Instruments Act, 1881 it has been a pattern within the
authorized group to take the conservative route. Since Section 138
imputes felony legal responsibility upon the issuer of the cheque for
dishonour, in a cost-benefit evaluation the worry of improper service
resulting in dismissal of the felony criticism rides excessive and
therefore, the provisions of the Information Technology Act, 2000 have
not been taken benefit off. The choice of the Supreme Court is
thus a gust of contemporary air and a a lot wanted leap for cheque
dishonour complaints to maintain up with the fast-changing occasions and
will improve the effectiveness of the treatment thereby rendering
higher justice.

The content material of this text is meant to supply a normal
information to the subject material. Specialist recommendation ought to be sought
about your particular circumstances.

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