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TMI Blog2014 (8) TMI 464X X X X Extracts X X X X X X X X Extracts X X X X ..... SCC No. 4118 of 2007 in the court of Chief Judicial Magistrate, First Class, Aurangabad. 3. For the purpose of disposal of this appeal, it is not necessary to narrate all the facts of the case. Suffice it to say that the complaint was filed alleging that the cheque issued by the respondent-accused for repayment of a legally recoverable debt bounced. On 17/6/2011 learned Magistrate issued process. The respondent-accused filed a criminal revision application before the Additional Sessions Judge, Aurangabad mainly on the assertion that the demand notice was not served on him. The said criminal revision application was rejected. Being aggrieved by the said order, the respondent-accused filed criminal writ petition in the High Court under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to pay, is it open for the complainant to file a case under Section 138 of the Negotiable Instruments Act. That being the position and in the complaint itself having not been mentioned that the notice has been served, on the assertions made in para 8, the complainant itself is not maintainable. We accordingly quash the complaint." 4. We have heard, at some length, Mr. S.S. Choudhari, learned counsel appearing for the appellant. Counsel submitted that the High Court has erred in quashing the complaint on the ground that complaint is silent about service of notice. Counsel submitted that in C.C. Alavi Haji v. Palapetty Muhammed & Anr. (2007) 6 SCC 555 , a three Judge Bench of this Court has conclusively decided this issue. It is held in thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision of this Court in Vinod Shivappa 's case?" 7. Dealing with the above question, this Court referred to K. Bhaskaran v. Sankaran Vaidhyan Balan (1999) 7 SCC 510, where this Court referred to Section 27 of the General Clauses Act, 1897 ('the GC Act') and observed that since the NI Act does not require that notice should only be given by 'post' in a case where the sender has despatched the notice by post with correct address written on it, Section 27 of the GC Act could be profitably imported and in such a situation service of notice is deemed to have been effected on the sender unless he proves that it was really not served and that he was not responsible for such non-service. 8. This Court then referred to Vinod Shivappa's case, wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n as to whether the service of notice has been fraudulently refused by unscrupulous means is a question of fact to be decided on the basis of evidence. In such a case the High Court ought not to exercise its jurisdiction under Section 482 of the Code of Criminal Procedure." 9. This Court then explained the nature of presumptions under Section 114 of the Evidence Act and under Section 27 of the GC Act and pointed out how these two presumptions are to be employed while considering the question of service of notice under Section 138 of the NI Act. The relevant paragraphs read as under: "13. According to Section 114 of the Act, read with Illustration (f) thereunder, when it appears to the Court that the common course of business renders it pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post". 14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. 11. Applying the above conclusions to the facts of this case, it must be held that the High Court clearly erred in quashing the complaint on the ground that there was no recital in the complaint that the notice under Section 138 of the NI Act was served upon the accused. The High Court also erred in quashing the complaint on the ground that there was no proof either that the notice was served or it was returned unserved/unclaimed. That is a matter of evidence. We must mention that in C.C. Alavi Haji, this Court did not deviate from the view taken in Vinod Shivappa, but reiterated the view expressed therein with certain cla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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