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Sec.138 of N.I.Act – Sec.27 of General clauses Act and Sec.114 of Evidence Act – Presumption of service of Statutory Notice under sec.138 – when it was given to correct address – then there is no need to plead specifically that the accused managed and got return the notice un served in the pleadings of complaint – High court erred in quashing the complaint basing on Shakti Travel & Tours which does not hold the field any more. – Apex court held that 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 delivered in the ordinary course of business. and set aside the High court order= CRIMINAL APPEAL NO.1523 OF 2014 [Arising out of Special Leave Petition (Crl.)No.8783 of 2013] M/s. Ajeet Seeds Ltd. … Appellant Vs. K. Gopala Krishnaiah … Respondent = 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41790

  Sec.138 of N.I.Act – Sec.27 of General clauses Act and Sec.114 of Evidence Act – Presumption of service of Statutory Notice under sec.138 – when it was given to correct address – then there is no need to plead specifically that the accused managed and got return the notice un served in the pleadings of complaint – High court erred in quashing the complaint basing on Shakti Travel & Tours which does not  hold  the field any more. – Apex court held that 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  delivered  in the ordinary course of business. and set aside the High court order=

High Court has quashed the complaint filed by him under Section 138  of  the

Negotiable Instruments Act, 1881 (‘the NI Act’) being SCC No. 4118  of  2007

in the court of Chief Judicial Magistrate, First Class, Aurangabad.=

Addt. Sessions Judge court

The  respondent-accused  filed   a   criminal

revision  application  before  the  Additional  Sessions  Judge,  Aurangabad

mainly on the assertion that the demand notice was not served on  him.   The

said criminal revision application was rejected.=

High court

The High Court quashed the complaint on a short ground  that  on

reading verification of the complaint dated 17/6/2011, it is  explicit  that

there are no recitals to demonstrate that the notice  issued  under  Section

138 of the NI Act by the complainant was served upon the  respondent-accused

on any specific date.  The High Court observed that there is no  proof  that

either the notice was served or it was returned unserved/unclaimed and  that

that there is no averment in the complaint about the same.  The  High  Court

concluded that,  therefore,  there  could  not  be  a  cause  of  action  to

prosecute the accused under Section 138 of the NI Act.

For coming  to  this

conclusion, the High Court relied on the  order  of  this  Court  in  Shakti

Travel & Tours v. State of Bihar & Anr[1].  The extract on  which  the  High

Court relied upon could be quoted :

“2. The accused who is the appellant, assails the order of  the  High  Court

refusing to quash the complaint filed under Section 138  of  the  Negotiable

Instruments Act. The only ground  on  which  the  learned  counsel  for  the

appellant prays for quashing of the complaint  is  that  on  the  assertions

made in paragraph 8 of the complaint, it must be held that  notice  has  not

been served and, therefore, an application under Section 138 could not  have

been maintained.  Undoubtedly, the accused has a  right  to  pay  the  money

within 15 days from the date of the service  of  notice  and  only  when  it

fails to pay, is it open for the complainant to file a  case  under  Section

138 of the Negotiable Instruments Act.  That being the position and  in  the

complaint itself having not been mentioned that the notice has been  served,

on  the  assertions  made  in  para  8,  the  complainant  itself   is   not

maintainable.  We accordingly quash the complaint.”=

Apex court 

In C.C. Alavi Haji, a three-Judge Bench  of  this  Court  was  dealing

with the question referred by a  two-Judge  Bench  for  consideration.   The

referring Bench was of the view that  in  D.  Vinod  Shivappa    v.    Nanda

Belliappa[3], this Court did not take note of Section 114  of  the  Evidence

Act in its proper perspective.

that it was not sufficient for a complainant to state that a  notice

was sent by registered post and  that  the  notice  was  returned  with  the

endorsement ‘out of station’ and that there should  be  a  further  averment

that the addressee-drawer had deliberately avoided receiving the  notice  or

that the addressee had knowledge of the notice, for  raising  a  presumption

under Section  114  of  the  Evidence  Act.

The  following  question  was,

therefore, referred to the larger Bench for consideration.

“Whether in absence of any averments in the complaint  to  the  effect  that

the accused had a role to  play  in  the  matter  of  non-receipt  of  legal

notice; or that the accused deliberately  avoided  service  of  notice,  the

same could have been entertained keeping in view the decision of this  Court

in Vinod Shivappa’s case?” =

in  C.C.  Alavi  Haji  v.Palapetty Muhammed &  Anr.[2],

a  three  Judge  Bench  of  this  Court  has

conclusively decided this issue.  It is held in this case  that  it  is  not

necessary to aver in the complaint that notice was served upon the  accused.

K.  Bhaskaran v.  Sankaran Vaidhyan Balan[4], 

where this Court referred to Section  27  of

the General Clauses Act, 1897 (‘the GC Act’) and observed that since the  NI

Act does not require that notice should only be given by ‘post’  in  a  case

where the sender has despatched the notice  by  post  with  correct  address

written on it, Section 27 of the GC Act could be profitably imported and  in

such a situation service of notice is deemed to have been  effected  on  the

sender unless he proves that it was really not served and that  he  was  not

responsible for such non-service.

This Court has  already  held  that  when  a  notice  is  sent  by

registered post and is returned with a postal endorsement ‘refused’ or  ‘not

available in the house’ or ‘house locked’ or  ‘shop  closed’  or  ‘addressee

not in station’, due service has to be 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.”

Apex court held that

  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  delivered  in

the ordinary course of business.

The High Court  also

erred in quashing the complaint on  the  ground  that  there  was  no  proof

either that the notice was served or  it  was  returned  unserved/unclaimed.

That is a matter of evidence.

We must mention  that  in  C.C.  Alavi  Haji,

this Court did not deviate from  the  view  taken  in  Vinod  Shivappa,  but

reiterated the view expressed therein with certain clarification.

We  have

already quoted the relevant paragraphs from Vinod Shivappa where this  Court

has held that service of notice is a matter of evidence  and  proof  and

it

would be premature at the stage of issuance of  process  to  move  the  High

Court for quashing of the  proceeding  under  Section  482  of  the  Cr.P.C.

These observations are squarely attracted to the  present  case.

The  High

Court’s reliance on an order passed by a two-Judge Bench in Shakti Travel  &

Tours is misplaced.  The order in Shakti Travel & Tours does  not  give  any

idea about the factual matrix of that case.  It does  not  advert  to  rival

submissions.  It cannot be said therefore that it lays  down  any  law.

In

any case in C.C. Alavi Haji, to which we have made a reference,  the  three-

Judge Bench has conclusively  decided  the  issue.

In  our  opinion,  the

judgment of the two-Judge Bench in Shakti Travel & Tours does not  hold  the

field any more.

In the circumstances, the impugned  judgment  is  set  aside  and  the

instant complaint is restored.  The appeal is allowed.

2014 – July. Part – http://judis.nic.in/supremecourt/filename=41790

RANJANA PRAKASH DESAI, N.V. RAMANA
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