TMI Blog2019 (10) TMI 806X X X X Extracts X X X X X X X X Extracts X X X X ..... fund insufficient. Now the onus to prove this was upon the applicant and he can summon the bank record to show that at the relevant time period when the cheque in question was presented, he had sufficient balance in his account and therefore, the reason for dishonour of cheque in question is to be adjudicated after recording the evidence of the parties - It is also pertinent to note that in the instant case, the complainant has already discharged his burden by producing the impugned cheques, which he alleges to have been issued by the applicant/accused in his favour bearing a signature, hence, initial presumption of the said cheque having been issued in favour of the complainant is already there which needs to be rebutted by the accused. The Court finds that the impugned order which is being challenged by the learned counsel for the applicant does not suffer from any lacuna at this stage and, therefore, this Court does not find any force in the arguments of the learned counsel for the applicant - petition dismissed. - M.Cr.C.No .27982/2019 - - - Dated:- 4-10-2019 - S. K. Awasthi Judge For the Applicant : Shri R.S. Raghuvanshi, learned counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d had issued summons against the applicant for his appearance. The order dated 09.08.2018 is subject matter of challenge before this Court in the instant application. 4. Learned counsel for the applicant has submitted that the complaint presented by the applicant is not maintainable as prior mandatory statutory 15 days' notice has not been served on the applicant by the respondent. From the averments of the complainant itself, it is apparent that the notice sent by the respondent/complainant through registered post before instituting the complaint was returned unserved to the respondent and thereafter he did not make any further attempt to serve the notice to the applicant and filed the complaint. The acknowledgment card of the registered post of said notice, clearly shows that there are no signatures or acknowledgment of the applicant or anyone else on the same. Further, the postal remarks on the envelope of such registered post also have remarks Praptkarta Aseemit Samay Ke Liye Bahar Gaye Hain, Atah Wapas , which does not show that it is served on the applicant. Despite this, the court below entertained the complaint and had take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y contact drawer/drawee bank and pleasen, meaning thereby the that the said cheques were dishonored by the bank. Thereafter the respondent/complainant issued statutory notice to the applicant within 15 days from receiving the information regarding dishonor of the cheque and the said notice was returned back to the respondent/complainant with remark that Praptkarta Aseemit Samay Ke Liye Bahar Gaye Hain, Atah Wapas . 8. Now it is important point to be decided in this case is that whether the cause of action has arisen as the notice sent by the respondent/accused to the accused/applicant was returned due to his unavailability. The conditions pertaining to the notice to be given to the drawer have been formulated and incorporated in clause (b) and (c) of the proviso of Section 138 (1) of the Act, the said clauses is reproduced below;- (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, 20 [within thirty days] of the receipt of information by him from the bank regarding the return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12. In the case of Prakash Jewellers vs A.K. Jewellers, 1999 (2) DLT 244, the Delhi High Court has held that payee or the holder of a cheque was as much entitled to claim the benefit of presumption of service once he had dispatched the demand notice through registered post or postal certificate on the correct address of the sendee written on it and where he had proved such dispatch through original receipts that presumption of service by post under Section 27 of General Clauses Act is rebuttable. But such rebuttal does not assume finality merely because of the sendee's denial to receive the notice. It would be so only where the sendee proves that he had not in fact received the notice and that he was not responsible for such non-service. 13. In Madhu v. Omega Pipes Ltd. [1994 (1) ALT (Crl.) 603 (Kerala)] the scope and ambit of Section 138 clauses (b) and (c) of the Act were noted by the Kerala High Court 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 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 ..... icated after recording the evidence of the parties. 16. It is also pertinent to note that in the instant case, the complainant has already discharged his burden by producing the impugned cheques, which he alleges to have been issued by the applicant/accused in his favour bearing a signature, hence, initial presumption of the said cheque having been issued in favour of the complainant is already there which needs to be rebutted by the accused. The law cited above by this Court also makes is clear that these points may be determined only after evidence is laid by the respective parties according to the burden/onus of proof on them which keeps shifting at different stages and appreciation of such kind of evidence is possible to be made only during trial. 17. In view of the above analysis, this Court finds that the impugned order which is being challenged by the learned counsel for the applicant does not suffer from any lacuna at this stage and, therefore, this Court does not find any force in the arguments of the learned counsel for the applicant. Accordingly, this petition is dismissed being devoid of merits. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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