TMI Blog2023 (8) TMI 462X X X X Extracts X X X X X X X X Extracts X X X X ..... posted on second occasion, what should be the approach of the trial Court is discussed and it was held that The High Court has merely adverted to the presumption that the first notice would be deemed to have been served if it was dispatched in the ordinary course. Even if that presumption applies, we are of the view that sufficient cause was shown by the Appellant for condoning the delay in instituting the complaint taking the basis of the complaint as the issuance of the first legal notice dated 31 December 2015. The observation in case Birendra Prasad Sah will be applicable except with one modification. There was no prayer for condonation of delay in present complaint. But foundation is there. Complainant has pleaded why notice was s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused No. 1 and accused No. 2 on 16th April, 2006 and on 21st April, 2006 respectively. As there was failure to pay by both the accused, the complaint was filed on 5th June, 2003. The complaint was filed by considering cause of action arisen on the basis of notice posted on second occasion. Trial Court observed that there was delay of four days in filing the complaint (page 7). Trial Court calculated the period from the notice posted on 31st March, 2003 by R.P.A.D. On this background, I have heard Mr. Mandar Limaye, learned Advocate for Appellant, Mr. Suryakant B. Chaudhari, learned Advocate for the Respondent Nos. 1 and 2 and Mr. H. J. Dedhia, learned APP for the State Respondent No. 3. 3. So questions which crop up is as follows : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a remark as not claimed. Hence he reissued the notice to accused No. 1 and 2 on 16th April, 2003 and 21st April, 2003 through under posted certificate. When he gave evidence, he deposed as : .. both the accused did not claim the notice and both the RPAD were returned to my advocate with remark as not claimed . 7. On this evidence trial Court observed:- The envelope which was sent to accused No. 1 is at Exh-38 and it is returned unserved with remark intimation delivered . On perusal of the said envelope, it reflects that, intimation was delivered to the accused on 14th April, 2003 and from 14th April, 2003 the accused could not have claimed the notice within 7 days. It means the said notice is not claimed on 21st A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6/2003 as per trial Court Complainant filed on 05/06/2003 05/06/2003 9. According to Mr. Limaye, if the dates for accused No. 1 firm are considered, cause of action arose on 06/05/2003 and from that date the complaint is filed in time. If we see the record, we may find that the complaint was filed on the basis of posting of notice on second occasion. The evidence of service of notice posted first by way of R.P.A.D. was not available. But at the time of evidence, these envelopes were very much available and they were tendered in evidence. On this background the complainant ought to have taken some stand i.e. to say complaint is filed on the basis of first notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was issued. It was unsuccessfully challenged before session Court and then before High Court. It was quashed and then complainant approached the Hon ble Supreme Court. The quashing order was set aside and complaint was restored. The relevant observation on the point of condonation of delay are:- Both in Paras 7 and 8 of the complaint, the appellant indicated adequate and sufficient reasons for not being able to institute the complaint within the stipulated period. These have been adverted to above. The CJM condoned the delay on the cause which was shown by the appellant for the period commencing from 6-4-2018. However, if Paras 7 and 8 of the complaint are read together, it is evident that the appellant had indicated sufficient cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14. If on 31st March, 2003 on first occasion, if the notice is sent by R.P.A.D. correct address, the presumption will come in to play. In case of Bhaskarn V. Sankarn Vaidhyanbalan (supra) has observed :- Thus, when a notice is returned by the sendee as unclaimed such date would be the commencing date in reckoning the period of 15 days contemplated in clause (c) to the provision of Section 138 of the Act. Of course such reckoning would be without prejudice to the right of the drawer of the cheque to show that he had no knowledge that the notice was brought to his address. In the present case the accused did not even attempt to discharge the burden to rebut the aforesaid presumption. In this case also the R.P.A.D. envelopes re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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