TMI Blog2019 (7) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... nstruments Act mandates the issuance of the statutory notice as a pre-condition to filing of a complaint. The cause of action to file a complaint under section 138 of the Negotiable Instruments Act arises only on issuance and service of statutory notice and failure of the accused to comply with the statutory notice. In the absence of service of statutory notice the cause of action would not accrue. Service of statutory notice would also include legal presumption of service if circumstances so warrant - in the present case there was admittedly no service of statutory notice and the presumption of service of the statutory notice also does not arise in the facts of the present case as the notice was not correctly addressed. Since the pre-condition of filing a complaint under section 138 of the Negotiable Instruments Act of sending a statutory notice has not been satisfied in the present case, no cause of action arose in favour of the complainant to file the subject complaint. Since no cause of action arose, the petitioner could not have instituted the complaint nor could the trial court as well as the appellate court by the impugned order have convicted the petitioner. Petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts that in his cross examination the complainant has categorically admitted that he had never met the petitioner or corresponded with the petitioner at the Barakhamba Road address. Further it is contended that in the complaint filed by the complainant the correspondence address mentioned in the alleged acknowledgement has been mentioned as the second address of the petitioner and the petitioner was served with the summons only at the second address. 9. He further submits that the Trial Court erred in placing reliance on the judgment of the Supreme Court in C.C. Alavi Haji vs Palapetty Muhammed Anr., AIR 2007 SC (Suppl) 705 . He submits that the said judgment would apply only in the case notice was correctly addressed. Admittedly in the present case notice was sent to an incorrect address at which the petitioner was not present. 10. He relies on the judgment in M /s. Ajeet Seeds Ltd. v. K. Gopala Krishnaiah, (2014) 12 SCC 685 wherein it has been held that presumption of service of notice would arise only in case the notice is correctly addressed. 11. Subject complaint was filed under Section 138 of the Negotiable Instruments Act contending that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uilding. Further, the complainant had deposed that the security guard in the building informed the complainant that the accused/owner of the building Mr Dhruv Verma did not keep any fixed time nor did he come regularly in the office. 20. It is an admitted position that the building at 28 Barakhamba Road is a multi-storeyed complex, having several floors and several occupants on each floor. It is also not the case of the complainant that the petitioner has a regular office in the said premises. Even in his cross-examination, the respondent/complainant had categorically stated that he had not met the accused at the address mentioned in the legal notice nor had he corresponded with him at the said address. 21. Perusal of the record clearly shows that the complainant even in the complaint had stated that the statutory notice was not delivered and had accordingly annexed with the complaint the returned envelope containing the statutory notice. 22. Legal presumption of service of notice can only arise in case the notice is correctly addressed. If the notice is incorrectly addressed no legal presumption can arise. In the present case, the complainant had annexed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at fixed time nor he was regular in his office meant that he did visit this property and his office at least occasionally and as such inference was drawn that office of the appellant was working there and it was a difficult task for the postman to find his office and deliver a letter addressed to him. 29. Both the Courts clearly erred in raising such a legal presumption. The admitted case is that post 1991, a commercial complex had been built at 28 Barakhamba Road housing scores of offices. It is an admitted position that there was several floors and several offices of third parties. There is nothing on record to suggest that petitioner had any office in the said property. 30. A security guard posted at the building which houses several offices would not satisfy the condition of being an agent empowered to receive notices on behalf of the occupants of the building. Further the complainant had not placed on record any material to suggest that on the date when the notice was sent, the petitioner was in possession of an office or visited any office in the said building. 31. The affidavit of the petitioner had clearly been misconstrued by the appellate court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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