TMI Blog2017 (5) TMI 1786X X X X Extracts X X X X X X X X Extracts X X X X ..... tice is sent at the correct address by registered post and neither acknowledgment nor undelivered registered cover is received back then there is presumption of service although rebuttable. The burden to rebut presumption lies on the party challenging the factum of service. In the present case it is undisputed that the notice under Section 138(b) of the N.I. Act was sent by the opposite party No. 2 by registered post to the applicant at the correct address. The facts in this regard have been clearly stated in the complaint filed by opposite party o.2. The drawer of the cheque i.e. the applicant has completely failed to rebut the presumption about the service of notice. He has also failed to show that he had no knowledge that the notice was brought to his address or that the address mentioned at the cover, was incorrect or that the letter was never tendered. Under the circumstances, there is presumption of service of notice sent by opposite party No. 2 to the applicant herein by registered post. Application dismissed. - Application U/S. 482 No. 17039 of 2017 - - - Dated:- 25-5-2017 - Surya Prakash Kesarwani, J. For Appellant: Diwan Saifullah Khan For Respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case are that it appears that the applicant herein has given a cheque No. 246232 for Rs. 22,85,000/- dated 06.01.2013 drawn on State Bank of India, Agra Main Branch, Agra to the opposite party No. 2 pursuant to some agreement. The opposite party No. 2 presented the cheque in his bank which was dishonoured and an intimation of dishonour of cheque was given by the Bank vide memo dated 09.04.2013. Consequently, the opposite party No. 2 sent a notice to the applicant dated 02.05.2013 by registered post requiring the applicant to pay the amount of the cheque within 15 days of the receipt of the notice. The applicant did not pay the amount of the cheque. Consequently, the opposite party No. 2 filed a complaint case No. 268A of 2013 on 03.07.2013 in the court of learned Addl. Chief Judicial Magistrate, Court No. 1, Baadi, Dhaulpur (Rajasthan) in which the applicant was summoned by order dated 25.09.2013. However, the Addl. Chief Judicial Magistrate, Court No. 1, Baadi, Dhaulpur (Rajasthan) passed an order dated 13.03.2015 signed on 18.03.2015 to return the plaint to the opposite party No. 2 to enable him to file the complaint case before the appropriate court in view of law laid down by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate and eradicate any legal complications, the category of Complaint cases where proceedings have gone to the stage of Section 145(2) or beyond shall be deemed to have been transferred by us from the Court ordinarily possessing territorial jurisdiction, as now clarified, to the Court where it is presently pending. All other Complaints (obviously including those where the accused/respondent has not been properly served) shall be returned to the Complainant for filing in the proper Court, in consonance with our exposition of the law. If such Complaints are filed/refiled within thirty days of their return, they shall be deemed to have been filed within the time prescribed by law, unless the initial or prior filing was itself time barred. 9. Perusal of the judgment in the case of Dashrath Rupsing Rathod (supra), shows that Hon'ble Supreme Court has provided that if the complaint is filed/refiled within 30 days of return, it should be deemed to have been filed within time prescribed by law, unless the initial or prior filing was itself time barred. The facts of the present case shows that the order dated 13.03.2015 to return the complaint was signed by the learned Addl. Chief Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the efficiency of banking system and its operation giving credibility to negotiable instrument in business transaction and to create an atmosphere of faith and reliance by discouraging people from dishonouring their commitments which are implicit when they pay their dues through cheque. Section 138 has been enacted to punish those unscrupulous persons who issued cheques for discharging their liabilities without really intending to honour the promise that goes with drawing up of such a negotiable instrument. To enhance the acceptability of cheque in settlement of liabilities by making the drawer liable for penalties in case of dishonour of cheque and to safeguard and to prevent harassment of honest drawers, Section 138 of the Act has been enacted. Reference in this regard may be had to the judgment of Hon'ble Supreme Court in the case of Mosaraf Hossain Khan v. Bhageeratha Engineering Ltd. (2006) 3 SCC 358, C.C. Alavi Haji v. Palapetty Muhammed and Anr (2007) 6 SCC 355, Damodar S. Prabhu v. Syed Babalal H. (2010) 5 SCC 663 (para 3) and MSR Leathers v. S. Palaniappan Anr (2013) 1 SCC 177 (para 29). 13. In the case of New India Sugar Mills Ltd. v. Commissioner of Sales Tax, B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nferring on it a discretion to waive the period of one month. 24...The provisions of the Act being special in nature, in terms thereof the jurisdiction of the court to take cognizance of an offence under Section 138 of the Act was limited to the period of thirty days in terms of the proviso appended thereto. The Parliament only with a view to obviate the aforementioned difficulties on the part of the complainant inserted proviso to Clause (b) of Section 142 of the Act in 2002. It confers a jurisdiction upon the court to condone the delay... 28. The proviso referred to above now permits the payee to institute prosecution proceedings against a defaulting drawer even after the expiry of the period of one month. If a failure of the payee to file a complaint within a period of one month from the date of expiry of the period of 15 days allowed for this purpose was to result in 'absolution', the proviso would not have been added to negate that consequence. The statute as it exists today, therefore, does not provide for 'absolution' simply because the period of 30 days has expired or the payee has for some other reasons deferred the filing of the complaint against th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reason or the other without any fault on the part of opposite party No. 2. The conduct of the applicant shows an effort on his part to defeat the very object of Section 138 which has been enacted to enhance the acceptability of cheque in settlement of liabilities by making the drawer liable for payment of amount for which the cheque was dishonoured. 16. The second submission of the applicant that he has been summoned without taking evidence, also does not appear to be acceptable, inasmuch as, the complaint is supported by an affidavit of the opposite party No. 2/complainant and along with complaint all relevant documents including the original cheque in question, the cheque return memo issued by the Bank and copy of notice along with registered postal receipts etc. have been filed by the opposite party No. 2 as evident from Annexure No. 3 and 4 to the affidavit accompanying the present application. 17. Third submission of learned counsel for the applicant that the notice issued by opposite party No. 2 was not served upon him, does not appear to be correct, inasmuch as, in the affidavit accompanying the complaint, the opposite party No. 2 has clearly stated that a notice date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imla Development Authority and Ors. v. Santosh Sharma (Smt.) and Anr. (1997) 2 SCC 637. 20. It has also been well settled by Hon'ble Supreme Court that when notice is sent at the correct address by registered post and neither acknowledgment nor undelivered registered cover is received back then there is presumption of service although rebuttable. The burden to rebut presumption lies on the party challenging the factum of service. Reference in this regard may be had to the judgments of Hon'ble Supreme Court in the case of Indian Bank v. Datla Venkata Chinna Krishnam Raju 1991 (Sup. 2) SCC 714; Ram Chandra Verma v. Jagat Singh Singhi and others (1996) 8 SCC 47; ATTABIRA Regulated Market Committee v. Ganesh Rice Mills (1996) 9 SCC 471; Union of India v. Ujagar Lal (1996) 11 SCC 116; C.C. Alavi Haji v. Palapetty Muhammed (2007) 6 SCC 555 (Paras 10 15) and Sunil Kumar Shambhudayal Gupta (DR) and others v. State of Maharashtra (2010) 13 SCC 657 (Paras 53 to 56). 21. In the case of Gujarat Electricity Board v. Atmaram Sungomal Poshani (supra), AIR (1989) SC 1433 (para 8), Hon'ble Supreme Court held as under : 8. There is presumption of service of a letter sent unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 : AIR 1992 SC 1604; State of M.P. v. Hiralal Ors. (1996) 7 SCC 523 and V. Raja Kumari v. P. Subbarama Naidu Anr. (2004) 8 SCC 774 : 2005 SCC (Cri) 393] 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. 15. Insofar as the question of disclosure of necessary particulars with regard to the issue of notice in terms of proviso (b) of Section 138 of the Act, in order to enable the Court to draw presumption or inference either under Section 27 of the G.C. Act or Section 114 of the Evidence Act, is concerned, there is no material difference between the two provisions. In our opinion, therefore, when the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of Clause (b) of proviso to Section 138 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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