TMI Blog2007 (2) TMI 713X X X X Extracts X X X X X X X X Extracts X X X X ..... e could not be served upon the petitioner and it was returned unserved with an endorsement of the postal peon Out of Station . The complainant in the complaint petition does not allege that the service of notice was deliberately avoided by the petitioner or the postal endorsement of the postal peon on the envelope was wrongly obtained. The question which arises for consideration is as to whether in a situation of this nature, the Court could take cognizance of the offence under Section 138 of the Negotiable Instruments Act on the basis of the averments made in the complaint petition. The learned counsel appearing on behalf of the respondent has drawn our attention to a decision of this Court s in D. Vinod Shivappa vs. Nanda Belliappa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dorsement made regarding his nonavailability can successfully avoid his prosecution because the payee is bound to issue notice to him within a period of 30 days from the date of receipt of information from the bank regarding the return of the cheque as unpaid. He is, therefore, bound to issue the legal notice which may be returned with an endorsement that the addressee is not available on the given address. We cannot also lose sight of the fact that the drawer may by dubious means manage to get an incorrect endorsement made on the envelope that the premises has been found locked or that the addressee was not available at the time when postman went for delivery of the letter. It may be that the address is corect and even the addressee is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion raised under Section 114 of the Evidence Act is undoubtedly a rebuttal presumption , but for the purpose of rebuttal of such a presumption, necessary averments must be made in the complaint petition. The question which, therefore, in our opinion, arises for consideration, is whether in absence of any averments in the complaint petition, that the accused had a role to play in the matter of such endorsement; the same could have been entertained keeping in view the decision of this Court in Vinod Shivappa s case (supra). We are of the opinion that the Division Bench having not considered that aspect of the matter, the same cannot be said to be an authoritative pronouncement on the said question; as even in such a case, the Court shall hav ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
