TMI Blog2009 (5) TMI 968X X X X Extracts X X X X X X X X Extracts X X X X ..... sufficient . It was stated in the complaint filed by the Bank under Section 138 NI Act that upon receipt of intimation from the Bank to which the cheque was presented that it was dishonored, a legal notice was sent to the drawer at the address available in the records of the Bank. The complainant stated that the said notice was sent/posted to the accused on 14th January 2009, by registered A/D post at his above-stated address as the same was duly provided time and again . The cover was not received back. It was claimed that thus the said notice has been duly served upon the accused. But in spite of the service of the said notice on the accused as aforesaid, the accused intentionally failed to show the positive response and also failed to make the payment of the aforesaid dishonored cheques to the complainant within the stipulated time . 4. The question that arose before the learned MM was whether it could be said that the legal notice issued to the drawer of the dishonored cheque, was in fact served on the drawer. The question arose in the clauses of the precise wording of Section 138(c) NI Act where one of the conditions for the offence to be attracted is that the drawer the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not be taken on the basis of presumption. Merely because, as in the instant case, after having sent the notice by registered post, the complainant has not received any intimation whatsoever and has not received the notice back unserved, a presumption could not be drawn that it had been duly served on the drawer/addressee. 8. In the circumstances, since no affidavit was also filed by the complainant stating that the accused was in fact residing at the address given in the notice, it was held that the essential condition for taking cognizance of the offence under Section 138 NI Act was not satisfied. The complaint was accordingly dismissed. It may also be mentioned that on the basis of the impugned order, fourteen other similar complaints filed by the petitioner were also dismissed. 9. Counsel for the petitioner urges that the learned MM erred in not drawing the presumption under Section 27 of the GC Act. He submitted that at the pre-summoning stage, it was not mandatory to prove delivery of notice sent by registered post to the accused and the presumption should be in favour of the complainant. Otherwise, several unscrupulous drawers who would easily escape liability wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for the petitioner, the provisions of the law may first be noticed. 14. Section 138 (b) NI Act is unambiguous in requiring a demand in writing to be made by the payee by giving a notice in writing to the drawer of the cheque within 30 days of receipt of intimation that the cheque has dishonored. The expression giving of notice has to be read in the context of Section 27 of the GC Act. In terms of the said provision whenever a statute uses the words served or give or sent unless a different intention appears, service would be presumed properly addressing, numbering and posting by registered post a letter containing the document. Unless the contrary is proved, service would be deemed to have been effected at that time at which the letter would be delivered in the ordinary course. 15. There can be no doubt that Section 138 has been introduced into the NI Act as a penal provision. The NI Act was otherwise not a criminal law statute. Chapter XVII NI Act was introduced to make the dishonor of the cheque for insufficiency of funds a punishable offence. The object of the introduction of Chapter XVII was no doubt to have a deterrent effect on unscrupulous drawers of ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. This is an outcome that ought to be avoided. Therefore, the appropriate course to be adopted, which is also the more practical one, is to insist on the same standard of proof of service of the legal notice as that envisaged under Section 144 NI Act in the context of summons. 18. Section 144 NI Act reads as under :- 144. Mode of service of summons.__ (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), and for the purposes of this Chapter, a Magistrate issuing a summons to an accused or a witness may direct a copy of summons to be served at the place where such accused or witness ordinarily resides or carries on business or personally works; for gain, by speed post or by such courier services as are approved by a Court of Session. (2) Where an acknowledgment purporting to be signed by the accused or the witness or an endorsement purported to be made by any person authorised by the postal department or the courier services that the accused or the witness refused to take delivery of summons has been received, the Court issuing the summons may declare that the summons has been duly served. 19. It will be seen from the above pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e imported in such a case . It was held that in that situation the deeming provision of Section 27 of the GC Act would be attracted and it would be for the drawer (noticee) to prove that it was not really served and that he was not responsible for such non-service. The key factor is to be noted in Bhaskaran s case that the court had before it the returned registered postal cover. In the instant case, however, nothing has been heard by the complainant after sending the notice by registered post. The notice has not been returned unserved. No proof of delivery report has been filed. There is no postal endorsement or certificate by the courier service agency to the effect that the noticee refused service. 21. In D. Vinod Shivappa v. Nanda Belliappa (2006) 6 SCC 456 the Supreme Court discussed in detail the rationale behind the provision and envisaged three possible situations (SCC, p.462): If a notice is issued and served upon the drawer of the cheque, no controversy arises. Similarly if the notice is refused by the addressee, it may be presumed to have been served. This is also not disputed. This leaves us with the third situation where the notice could not be served on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. (emphasis supplied) 22. The important aspect to note in the above discussion as far as the present case is concerned is the insistence by the Court that there must be some endorsement on the postal cover of the noticee having left, or not being found or refusing service of notice. The facts in D.Vinod Shivappa were that the legal notice sent to the drawer of the dishonoured cheque by registered post was returned unserved with an endorsement Party not in station, arrival not known . That was again not a case where nothing had been heard from the postal department after the notice was dispatched. It was in those circumstances that the Supreme Court held that Section 27 GCA could be invoked to presume service of notice. 23. We then turn to the case of C.C. Alavi Hazi. In para 18 of the said judgment, the facts are narrated. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch a presumption to be drawn in the absence of a signed acknowledgment due card or a postal endorsement on the returned cover or a proof of delivery certificate. The result is that a meaningless exercise of summons having to be sent to the same address knowing fully well that the accused is not available there, has to be undertaken. It is a disseminated fact verifiable from the records that in the courts of the learned MMs in Delhi there are over 2 lakh such complaints pending without any progress being made since summons are unable to be served upon the accused. If it was the object of the legislature, in introducing the penal provisions in the NI Act that they should serve as a deterrent to unscrupulous drawers of cheques, then the said object is not achieved by the non-service of such summons resulting in the complaints remaining pending for several years. 26. What is happening is that without the complainant being put to any trouble in finding out the correct address of the complainant, the burden is shifted to the court. Our Magistrates are stuck with several such complaints which they are unable to dismiss and are yet unable to proceed with because the accused has not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In Harman Electronics the Supreme Court also referred to its earlier judgment in Dalmia Cement (Bharat) Ltd. v. Galaxy Traders Agencies Ltd. (2001) 6 SCC 463, State of Punjab v. Amar Singh Harika AIR 1966 SC 1313 and State of Punjab v. Khemi Ram (1969) 3 SCC 28 . It was held that for constitution of an offence under Section 138 of the Act, notice must be received by the accused. It may be deemed to have been received in certain situation. The word undertook‟ inter alia means to make known, informed or convey etc.‟ 29. This Court is unable to accept the proposition that by merely filing an affidavit stating that the drawer resides at the address given in the legal notice, the complainant can satisfy the requirement of having to satisfy the Court that notice was in fact was delivered to the drawer. In the considered view of this Court, such an affidavit can be accepted only if the deponent states that he either went personally and found that the accused was residing at the address or is able to produce some postal certificate or an endorsement by a courier service agency that the accused is in fact residing at the address and yet refusing to accept the noti ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
