TMI Blog2012 (11) TMI 1303X X X X Extracts X X X X X X X X Extracts X X X X ..... t having been reached, the parties entered into a compromise. The appellant-accused agreed to pay a sum of ₹ 12,00,000/-, as against the fine amount of ₹ 24,00,000/-. Out of the agreed amount, the accused paid by cash ₹ 4,00,000/-, to the complainant and assured to pay the balance amount of ₹ 8,00,000/-, in installments. Towards payment of the said balance amount, the accused issued four post dated cheques bearing Nos. 0706011, 0706012, 0706013 and 0706014, drawn on Chikmagalur-Kodagu Grameena Bank, Agalagandi branch. The complainant presented for encashment, the cheque bearing No. 0706012, dated 12.3.2008, for ₹ 2,50,000/-, which bears signature of the accused. The bank returned the cheque on 12.3.2008, with an endorsement 'payment stopped by the drawer'. The complainant issued a notice on 8.4.2008, calling upon the accused to pay the cheque amount within 15 days. Notice sent by RPAD with the description 'M.N. Srikara Rao' S/o Late Sheshagiri Rao, Agriculturist, r/o Haluthota, Bethadakolalu, Koppa Taluk was returned for the reason, 'an initial of the addressee differs'. However, notice sent by certificate of posting with the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the accused and allowed in part, the revision petition filed by the complainant. Apart from the sentence of imprisonment and fine imposed by the Trial Court, the accused was ordered to pay compensation of ₹ 3,00,000/- to the complaint, in default, was directed to undergo imprisonment for a further period of 6 months. However, the imprisonment under the default clause was ordered to run concurrently. 3. As the signature (Ex. P1(a)) in the cheque (Ex. P1) is admitted to be that of the accused, the presumption envisaged under S.118 of the Act can be legally inferred, that the cheque was made or drawn for consideration on the date which the cheque bears. S.139 of the Act enjoins on the Court to presume that the holder of the cheque received it for the discharge of any debt or liability. In the case of Rangappa Vs. Sri Mohan, (2010) 11 SCC 441, Apex Court has held that the presumption mandated by S.139 includes a presumption that there exists a legally enforceable debt or liability, which being a rebuttable one, it is open to the accused to raise a defence, wherein, the existence of a legally enforceable debt or liability can be contested. 4. In the aforenoticed factual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the other hand, by placing reliance on the decision in the case of Gujarat Electricity Board and another Vs. Atmaram Sungomal Poshani, (1989) 2 SCC 602, supported the view taken in the matter by the Courts below. He submitted that the notice given by the complainant was evaded by the accused with dishonest intention. He further submitted that the Courts below have noticed the material aspects of the case and there being a correct view taken, no interference is warranted. 7. Perused the record. In view of the rival contentions, the point to be decided is: Whether the cause of action to prosecute has not arisen at all, as the notice sent by the complainant to the accused was returned with an endorsement, 'the addressee's initial differs'? 8. The conditions pertaining to the notice to be given to the drawer of a returned/bounced cheque have been formulated and incorporated in clauses (b) and (c) of the proviso to S.138 of the Act. In the instant case, the complainant, after the cheque was returned on 12.3.2008, with an endorsement 'payment stopped by the drawer', gave the notice (Ex. P3/P6) by RPAD on 8.4.2008. The addressee was shown as 'Sri M.N. Sri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the next one or two days also before returning it to the sender. However, he has neither the power nor the time to make enquiries regarding the whereabouts of the addressee; he is not expected to detain the letter until the addressee chooses to return and accept it; and he is not authorised to affix the letter on the premises because of the assessee's absence. His responsibilities cannot, therefore, be equated to those of a process server entrusted with the responsibilities of serving the summons of a court under Order V of the CPC. The statutory provision has to be interpreted in the context of this difficulty and in the light of the very limited role that the post office can play in such a task. If we interpret provision as requiring that the letter must have been actually delivered to the addressee, we would be virtually rendering it a dead letter. The letter cannot be served where, as in this case, the tenant is away from the premises for some considerable time. Also, an addressee can easily avoid receiving the letter addressed to him without specifically refusing to receive it. He can so manipulate matters that it gets returned to the sender with vague endorsements such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... **** 14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement refused or not available in the house or house locked or shop closed or addressee not in station , due service has to be presumed. (Vide Jagdish Singh v. Natthu Singh, (1992) 1 SCC 647; State of M.P. v. Hiralal,: (1996) 7 SCC 523 and V. Raja Kumari v. P. Subbarama Naidu, (2004) 8 SCC 774. It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss of the accused. Hence, it is for the accused to prove that the postman did not tender to him the registered envelope containing Ex. P6. On account of the scheming act of avoidance by the addressee i.e., the accused, the postman has returned the RPAD envelope containing Ex. P6 to the complainant. 12. Undeniably, the cheque Ex. P1 was issued by the accused in a judicial proceeding i.e., in Crl.A. No. 20/2007, for discharge of his legal liability. The cheque when presented for encashment was returned for the reason 'payment stopped by the drawer'. The accused has failed to prove, that on the date when the cheque Ex. P1 was presented for encashment, there was sufficient fund in his bank account for the clearance. The accused has failed to rebut the presumptions under Ss. 118 and 139 of the Act. The accused in the circumstances of the case has to be termed as 'an unscrupulous drawer', who never intended to honour the cheque issued by him, that too, in a judicial proceeding, to avoid his imprisonment, as he had been found guilty and had been sentenced in C.C. No. 286/2004. The accused, who claimed that he did not receive the notice sent by post, could within 15 days ..... X X X X Extracts X X X X X X X X Extracts X X X X
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