TMI Blog2018 (1) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... presumed to have been served. In a case where notice is not claimed even though sent by registered post, with the aid of Section 27 of the General Clauses Act, the drawer of the cheque may be called upon to rebut the presumption which arises in favor of service of notice. However, no rule of universal application can be laid down that in all cases where notice is not served on account of non-availability of the addressee, the court must presume service of notice. There is no material to interfere with the conviction and sentence passed by the Courts below and accordingly, this Criminal Revision Petition is dismissed. - CRL. RC. No. 1253 of 2014 - - - Dated:- 22-11-2017 - Teekaa Raman, J. For the Petitioner : Mr.M.Vivekanandan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the accused would submit that the address mentioned in the legal notice is not of the accused. The complainant wantonly sent legal notice to a wrong address and thereby he caused the notice not served on the accused. The complainant is not maintainable against the accused. Hence, he prayed for acquittal. 4. According to the learned counsel for the respondent/complainant the statutory notice sent by the complainant was served on the accused and he claimed to have observed the procedure under Section 138(b) of the Act. 5. To prove his case the complainant has examined himself as PW1 and through him he has marked Ex.P1 to Ex.P5. On the side of accused one Mr.Jaqruth sha has been examined as DW1 who speaks about the execution of cheq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 138 of Negotiable Instruments Act, the entire criminal proceedings is to be negated. 9. Per contra, the learned counsel for the respondent could contend that only in respect of the postal pin number, there was a mistake however the Postal Department based upon the address which is clearly mentioned has taken the cover to the concerned apartment and after intimation to the complainant and as he failed to be taken the delivery of the same it was 'returned' after the statutory period and hence, prayed for dismissal of the revision petition. 10. The learned counsel for the respondent further contended that there is no dispute in respect of borrowal of money and issuance cheque by the revision petitioner for legally enforceable de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court reported in (2004) 8 SCC 774 (V.Raja Kumari v.P.Subbarama Naidu and another) which is to the effect that wherein it has been held that when the complainant fails to send legal notice to the correct address of the accused and fails to serve, the cause of action for filing the complaint under Section 138 of the Negotiable Instruments Act will not arise and further held that service of legal notice on the respondent/accused is a mandatory. In the reply, the counsel for the revision petitioner relied upon the decision of this Supreme Court in (2004) 8 SCC 774 (V.Raja kumari V.P.Subbarama Naidu and another) to the limited extent that:- statutory notice sent to the correct address of the drawer but returning with the endorseme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3, Meenakshi, Assistant Post Master, High Court Campus Post Office and also D.W.4, Muthukrishnan who in his cross examination have categorically stated that even if there are minor errors have been in the address we try to ascertain the actual address of the addressee and he also categorically deposed that he had served the postal intimation to the accused/revision petitioner and the intimation has been duly served upon the revision petitioner. 20. To resolve the controversy, it appears that the trial Court also put a Court question to the P.W.4 for which P.W.4 has categorically deposed regarding the procedure adopted by the postal department for ascertaining the person when there are minor error in the mail address and servicing of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he failed to collect the same from the concerned Post Office, the same was returned as per the Ex.P4 and hence, relying upon the decision of the Hon'ble Supreme Court in (2006) 6 SCC 456 (D.Vinod Shivappa V.Nanda Belliappa) herein it has held that :- It is no doubt true that the receipt of the notice has to be proved, but if the notice is refused by the addressee, it may be presumed to have been served. In a case where notice is not claimed even though sent by registered post, with the aid of Section 27 of the General Clauses Act, the drawer of the cheque may be called upon to rebut the presumption which arises in favour of service of notice. However, no rule of universal application can be laid down that in all cases where notice is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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