TMI Blog1998 (8) TMI 624X X X X Extracts X X X X X X X X Extracts X X X X ..... eque, which was issued towards part satisfaction of the debt was dis-honoured by the Bank with an endorsement exceeds arrangement . The complainant was intimated about the same on 22-1-1996. The complainant thereafter got issued a statutory notice dated 24-1-1996 to the accused. It is further alleged that A-1 received the notice on 29-1-1997 and A-7 refused to receive the said notice. The accused, however, issued a fresh cheque on 30-9-1996 for the said sum of ₹ 10.00 lakhs. The complainant presented the said cheque for collection on 9-12-1996 and the same was also dis-honoured with an endorsement payment stopped by the drawer . Again the complainant got issued the statutory notice dated 14-12-1996. The time and date of offence, according to the complainant, are as follows: Date of cheque: 30-09-1996 Date of presentation: 09-12-1996 Date of Return of cheque: 11-12-1996 Date of Legal Notice: 14-12-1996 3. It is also specifically alleged in the complaint that A-1 is represented by its Chairman; A-2 is the Chairman of the Company and A-3 is the Managing Director of the Company. A-4 is the wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... soever that on the date of the alleged offence, the first petitioner was the Managing Director of the Company. Therefore, he cannot contend that he is not liable for the alleged offence committed by the Company. 7. The only point strenuously urged by the learned Counsel for the petitioners is about the requirement of service of notice. The learned Counsel would urge that the complaint filed by the first respondent does not satisfy the requirement of law. It is urged that the complaint, it self, does not disclose that any notice, as such, was served upon the accused. Service of notice is a mandatory requirement. The service of notice upon the company and the persons responsible for its management is the mandatory requirement. The learned Counsel for the first respondent would urge that notices ware sent under registered post on 14-12-1996 to the accused and neither the postal cover nor the acknowledgment from the accused was received by it. The first respondent had waited until expiry of fifteen days and then filed the complaint. The learned Counsel for the first respondent would further urge that the statutory notice was sent under the registered post acknowledgment, due and ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the acknowledgment from the accused. According to Sri V.L.N.G.K. Murthy, learned Counsel for R-1, the presumption under Section 27 of the General Clauses Act is available. The further observation of the Court that service of notice is a mandatory requirement would also not help the case of the petitioners/accused. Once it is established that notice was sent under Registered post Acknowledgment due and if neither the postal cover nor the Acknowledgment is returned, the presumption available is that the addressee had received the notice. It would be a case of service of notice. In such cases requirement of Section 138 of the Negotiable Instruments Act shall be deemed to have been complied with. 11. This Court in V. Satyanarayana v. A.P. Travel and Tourism Department Ltd., 1997 (1) ALD (Crl.) 706 (AP) = 1997 (2) ALT (Crl.) 1, observed that: In Madhu's case 1994 (1) ALT (Crl.) 603, K.T. Thomas, J. considered the scope of Section 138, clauses (b) and (c) of N.I. Act and observed as follows: In clause (c) of the proviso the drawer of the cheque is given fifteen days from the date 'of receipt of the said notice' for making payment. This affords clear indication ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decided during the trial of the case only. Complaint under Sections 138 of the Negotiable Instruments Act cannot be quashed or dismissed merely because the notice was not served on the accused or drawer without enquiring into the circumstances leading to the non-service of notice. 12. The Apex Court in Attabira Regulated Market Committee v. Ganesh Rice Mills, , observed that though notice was sent to the respondent on 14-4-1992 till date neither Acknowledgement nor unserved envelope has been received. Under these circumstances, the notice must be deemed to have been served on the respondent. 13. In Indian Bank v. Datla Venkata Chinna Krishnam Raju, , the Apex Court observed: Notice was sent by registered post but neither the A.D. card nor the unserved registered cover has been received back by the Court. We, therefore, presumed, that the respondent has been served.'' 14. In M/s. Madan and Company v. Wazir Javir Chand, , the Apex Court while interpreting the provisions of the J K Houses and Shops Rent Control Act, 1966, dealing with the requirement of a valid notice to terminate the tenancy, observed that: ...if a registered letter addressed to a perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as is required in law. It shall certainly be open to the petitioners accused to rebut the presumption and establish that in fact, the complainant did not send any such notice under registered post acknowledgment due. At this stage, it is not possible for this Court to record any finding as to whether the notice was in fact, sent to the petitioner accused under registered post acknowledgment due. In a proceeding under Section 482 of the Code of Criminal Procedure, this Court has to proceed on the assumption that the averments made in the complaint are true on their face value. 19. The learned Counsel for the petitioners further urges that the complainant did not enclose the postal receipt along with the complaint evidencing the, registration of any cover containing the statutory notice. It is a matter of evidence. Failure to produce the postal receipt by the complainant may have its own consequences and may be, it would be easy for the petitioner/accused to/rebut the presumption of service of notice. There is no doubt that the initial burden would be, upon the complainant to prove that the statutory notice was sent under registered post acknowledgment due. These are all the que ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
