TMI Blog2021 (4) TMI 740X X X X Extracts X X X X X X X X Extracts X X X X ..... er has dispatched the notice through registered post with correct address written on it, Section 27 of General Clauses Act could be profitably imported and in such a situation service of notice deemed to have been effected on the sender unless he proves that it was really not served and he was not responsible for such non-service. In the present case, there is no rebuttal evidence to show that the complainant has deliberately and intentionally sent the legal notice to the wrong address and the accused was not working at the place and address shown in the registered envelope. The finding recorded by the Court below regarding service of notice through registered post holding that there is no proper service of notice is contrary to Section 138 of N.I. Act - the respondent-accused has failed to rebut the presumption by placing cogent and convincing evidence. Therefore, this Court is of the view that the findings recorded by the Court below cannot be sustained in law. Appeal allowed - decided in favor of appellant. - CRIMINAL APPEAL NO.838 OF 2011 (A) - - - Dated:- 1-3-2021 - HON'BLE MR. JUSTICE ASHOK G. NIJAGANNAVAR APPELLANT (BY SRI GURURAJ JOSHI, ADVOCATE) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent within the time of validity, but the cheques were returned unpaid for want of funds in the account of the respondent-accused in the bank on which the cheques were drawn. However, the trial Court was of the opinion that appellant-complainant ought to have issued a notice under Certificate of Posting (COP) in addition to the notice sending through Registered Post with Acknowledgment Due (RPAD). With the said observation, the trial Court has come to the conclusion that the contention of the appellant-complainant that he intimated the respondent-accused regarding dishonour of the cheque leads to suspicion as the P.W.1 has also admitted in the cross-examination to a suggestion made by the respondent-accused that the appellant-complainant has not sent the legal notice to his correct address. Further it is observed that the appellant-complainant has not sent the legal notice to the respondent-accused under certificate of posting, there is no presumption of proper service of notice to the respondent-accused and has further held that the appellant-complainant has failed to prove that he had intimated the respondent-accused regarding dishonour of cheques and nothing on record that respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inant has intentionally issued legal notice to the wrong address and has managed to file a false case against the respondent-accused. There is no convincing evidence to show that the respondent-accused has committed the offence punishable under Section 138 of N.I.Act. Thus, the appeal deserves to be dismissed. 7. Having heard the submission of learned counsel for both side, the point that arise for consideration would be : Whether the trial Court was justified in acquitting the accused? 8. In the present appeal, the legal principles regarding presumption to be drawn regarding service of legal notice to the respondent-accused is under consideration. Thus, it is necessary to ascertain whether there was proper service of notice as per the procedure prescribed under Section 94 of Negotiable Instruments Act and the provisions of General Clauses Act. 9. Section 94 of Negotiable Instruments Act, 1881, reads as under: 94. Mode in which notice may be given.-Notice of dishonour may be given to a duly authorized agent of the person to whom it is required to be given, or, where he has died, to his legal representative, or, where he has been declared an insolvent, to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presumed. [Vide Jagdish Singh Vs. Natthu Singh (1992) 1 SCC 647; State of M.P. Vs. Hiralal Ors. (1996) 7 SCC 523 and V.Raja Kumari Vs. P.Subbarama Naidu Anr. (2004) 8 SCC 74] It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved. 10. It is thus clear that Section 114 of the Evidence Act enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. Section 27 of the GC Act gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. It is not necessary to 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice postal cover, the address shown in the said postal cover and the address shown in the cause title of the complaint are one and the same. The respondent-accused has not at all denied that he was working as Health Inspector at the City Municipality Council, Davanagere. 14. When a sender has dispatched the notice through registered post with correct address written on it, Section 27 of General Clauses Act could be profitably imported and in such a situation service of notice deemed to have been effected on the sender unless he proves that it was really not served and he was not responsible for such non-service. In the present case, there is no rebuttal evidence to show that the complainant has deliberately and intentionally sent the legal notice to the wrong address and the accused was not working at the place and address shown in the registered envelope. 15. The finding recorded by the Court below regarding service of notice through registered post holding that there is no proper service of notice is contrary to Section 138 of N.I. Act. In view of the ratio laid down in the aforesaid decisions, there is proper service of notice and there was no requirement to serve the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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