TMI Blog2007 (5) TMI 335X X X X Extracts X X X X X X X X Extracts X X X X ..... d with an endorsement that the addressee was abroad. We are of the view that on facts in hand the requirements of section 138 of the Act had been sufficiently complied with and the decision of the High Court does not call for interference. - CRL. APPEAL NO. 767 OF 2007 - - - Dated:- 18-5-2007 - K.G. BALAKRISHNAN, R.V. RAVEENDRAN AND D.K. JAIN, JJ. K. Rajeev for the Appellant. A. Raghunath, G. Prakash and Ms. Beena Prakash for the Respondent. JUDGMENT D.K. Jain, J. - Leave granted. 2. The matter has been placed before the three-Judge Bench in view of a Reference made by a two-Judge Bench of this Court, pertaining to the question of service of notice in terms of clause ( b ) of proviso to section 138 of the Negotiable Instruments Act, 1881 (in short the Act ). Observing that while rendering the decision in D. Vinod Shivappa v. Nanda Belliappa [2006] 6 SCC 456, this Court has not taken into consideration the presumption in respect of an official act as provided under section 114 of the Indian Evidence Act, 1872, the following question has been referred for consideration of the larger Bench : "Whether in absence of any averments in the complain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and ( c )the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice." 6. As noted hereinbefore, section 138 of the Act was enacted to punish unscrupulous drawers of cheques who, though purport to discharge their liability by issuing cheque, have no intention of really doing so. Apart from civil liability, criminal liability is sought to be imposed by the said provision on such unscrupulous drawers of cheques. However, with a view to avert unnecessary prosecution of an honest drawer of the cheque and with a view to give an opportunity to him to make amends, the prosecution under section 138 of the Act has been made subject to certain conditions. These conditions are stipulated in the proviso to section 138 of the Act, extracted above. Unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions relating to giving of notice often receive liberal interpretation, ( vide page 99 of the 12th Edn.) The context envisaged in section 138 of the Act invites a liberal interpretation for the person who has the statutory obligation to give notice because he is presumed to be the loser in the transaction and it is for his interest the very provision is made by the Legislature. The words in clause ( b ) of the proviso to section 138 of the Act show that payee has the statutory obligation to make a demand by giving notice. The thrust in the clause is on the need to make a demand . It is only the mode for making such demand which the Legislature has prescribed. A payee can send the notice for doing his part for giving the notice. Once it is dispatched his part is over and the next depends on what the sendee does." 8. Since in K. Bhaskaran s case ( supra ), the notice issued in terms of clause ( b ) had been returned unclaimed and not as refused, the Court posed the question: "Will there be any significant difference between the two so far as the presumption of service is concerned ?" It was observed that though section 138 of the Act does not require that the notice sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or that the addressee was not available at the time when postman went for delivery of the letter. It may be that the address is correct and even the addressee is available but a wrong endorsement is manipulated by the addressee. In such a case, if the facts are proved, it may amount to refusal of the notice. If the complainant is able to prove that the drawer of the cheque knew about the notice and deliberately evaded service and got a false endorsement made only to defeat the process of law, the Court shall presume service of notice. This, however, is a matter of evidence and proof. Thus even in a case where the notice is returned with the endorsement that the premises has always been found locked or the addressee was not available at the time of postal delivery, it will be open to the complainant to prove at the trial by evidence that the endorsement is not correct and that the addressee, namely the drawer of the cheque, with knowledge of the notice had deliberately avoided to receive notice. Therefore, it would be premature at the stage of issuance of process, to move the High Court for quashing of the proceeding under section 482 of the Code of Criminal Procedure. The question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. According to section 114 of the Act, read with illustration ( f ) there-under, when it appears to the Court that the common course of business renders it probable that a thing would happen, the Court may draw presumption that the thing would have happened, unless there are circumstances in a particular case to show that the common course of business was not followed. Thus, section 114 enables the Court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. Consequently, the Court can presume that the common course of business has been followed in particular cases. When applied to communications sent by post, section 114 enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. But the presumption that is raised under section 27 of the G.C. Act is a far stronger presumption. Further, while section 114 of Evidence Act refers to a general presumption, section 27 refers to a specific presumption. For the sake of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce between the two provisions. In our opinion, therefore, when the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of clause ( b ) of proviso to section 138 of the Act stands complied with. It is needless to emphasise that the complaint must contain basic facts regarding the mode and manner of the issuance of notice to the drawer of the cheque. It is well-settled that at the time of taking cognizance of the complaint under section 138 of the Act, the Court is required to be prima facie satisfied that a case under the said section is made out and the aforenoted mandatory statutory procedural requirements have been complied with. It is then for the drawer to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the cover was incorrect or that the letter was never tendered or that the report of the postman was incorrect. In our opinion, this interpretation of the provision would effectuate the object and purpose for which proviso to section 138 was enacted, namely, to avoid unnecessary hard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resumption to the contrary under section 27 of the G.C. Act and section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in K. Bhaskaran s case ( supra ), if the "giving of notice" in the context of clause ( b ) of the proviso was the same as the "receipt of notice" a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of section 138 of the Act. 18. In the instant case, the averment made in the complaint in this regard is : "Though the complainant issued lawyer s notice intimating the dishonour of cheque and demanded payment on 4-8-2001, the same was returned on 10-8-2001 saying that the accused was out of station ." True, there was no averment to the effect that the notice was sent at the correct address of the drawer of the cheque by registered post acknowledgement due . But the returned envelope was annexed to the complaint and it, thus, formed a part of the complaint which showed that the notice was sent by registered post acknowledgement due to the correct address and was returned with an e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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