TMI Blog2022 (8) TMI 820X X X X Extracts X X X X X X X X Extracts X X X X ..... . On admitted facts, there is no proof of service of notice dated 1st June 2012 upon the petitioner. Both Courts have taken note of the aforesaid circumstance that no proof as regards service of legal notice dated 1st June 2012 has been produced by the complainant - the proposition as regards giving of notice and receipt of notice is in relation to presumption of service under section 27 of the General Clauses Act, 1897 which would attract only on proof by the complainant by producing postal receipt which would clearly establish that the postal cover was correctly addressed and sufficiently stamped, and by proving the same in accordance with the rules of evidence. Admittedly, postal receipt and postal cover have not been produced by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nch, Bank of India was issued by him. However, the said cheque when presented at Kumardhubi Branch of State Bank of India for encashment for the second time on 18th May 2012 was returned unpaid on account of insufficient fund . 4. OP No. 2 has asserted that he issued legal notice dated 1st June 2012 requiring the accused to pay the cheque amount within 15 days. However, instead of paying the cheque amount the accused came in his office at 6:00 PM on 17th June 2012 and threatened him. Constrained, the informant instituted C.P Case No. 1392 of 2012. 5. During the trial, the informant examined himself as PW 2 and produced Rahul Kumar Yadav another witness to support his case. 6. As noticed above, the petitioner has been convicted and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d counsel for OP No. 2 would urge that the legal notice dated 1st June 2012 was tendered in evidence vide Exhibit-1/3 and the accused never raised any grievance as regards non-service of the said legal notice upon him and while so an inference on valid service of notice upon the petitioner must be drawn. 11. Mr. Sanjay Prasad, the learned counsel for OP No. 2 refers to paragraph no. 17 of the judgment of Hon'ble Supreme Court in C.C. Alavi Haji v. Palapetty Muhammed Another (2007) 6 SCC 555 to lay support to the aforesaid submission made on behalf of OP No. 2. 12. In C.C. Alavi Haji , the Hon'ble Supreme Court has held as under: 17. It is also to be borne in mind that the requirement of giving of notice is a clear de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 27 of the General Clauses Act, 1897 which would attract only on proof by the complainant by producing postal receipt which would clearly establish that the postal cover was correctly addressed and sufficiently stamped, and by proving the same in accordance with the rules of evidence. Admittedly, postal receipt and postal cover have not been produced by the complainant to show that the legal notice dated 1st June 2012 was sent to the petitioner. 14. Having regard to the aforesaid facts and circumstances in the case, this Court finds that the essential facts to prove the offence under section 138 of the Negotiable Instruments Act, 1881 have not been established during the trial and while so conviction and sentence of the petitioner ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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