2007 (5) TMI 335 - SC - Indian Laws

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? Whether the service of notice has been fraudulently refused by unscrupulous means? Held that - Appeal dismissed. The averment made in the complaint in this regard is that though the complainant issued lawyer s notice intimating the dishonour of cheque and demanded payment on 4-8-2001, the same was returned on 10-8-2001 saying that the accused was out of station . True, there was no averment to the effect that the notice was sent at the correct address of the drawer of the cheque by registered post acknowledgement due . But the returned envelope was annexed to the complaint and it, thus, formed a part of the complaint which showed that the notice was sent by registered post acknowledgement due to the correct address and was returned with an endorsement that the addressee was abroad. We are of the view that on facts in hand the requirements of section 138 of the Act had been sufficiently complied with and the decision of the High Court does not call for interference.

Issues Involved:
1. Service of notice under Section 138 of the Negotiable Instruments Act, 1881.
2. Interpretation of "giving of notice" and "receipt of notice."
3. Applicability of Section 114 of the Indian Evidence Act, 1872.
4. Presumption under Section 27 of the General Clauses Act, 1897.
5. Requirements for the complaint under Section 138 of the Negotiable Instruments Act.

Issue-wise Detailed Analysis:

1. Service of Notice under Section 138 of the Negotiable Instruments Act, 1881:
The core issue pertains to the service of notice as mandated by Section 138 of the Negotiable Instruments Act. The conditions for notice to the drawer are detailed in clauses (b) and (c) of the proviso to Section 138. Clause (b) requires the payee to give a written notice to the drawer within 30 days from the date of receiving information from the bank regarding the cheque's return as unpaid. Clause (c) provides the drawer with 15 days to make the payment upon receipt of the said notice. The court emphasized that these stipulations are mandatory and serve to avoid unnecessary prosecution of honest drawers while imposing criminal liability on unscrupulous ones.

2. Interpretation of "Giving of Notice" and "Receipt of Notice":
The court addressed the interpretation of "giving of notice" in clause (b) of the proviso to Section 138. It distinguished between "giving" and "receipt" of notice, asserting that "giving" involves the process of sending the notice, while "receipt" is its accomplishment. The court referenced K. Bhaskaran v. Sankaran Vaidhyan Balan, which held that the payee's duty is to send the notice to the correct address, and it is the drawer's responsibility to act upon it. The court warned against a strict interpretation that would allow dishonest drawers to evade legal consequences by avoiding notice.

3. Applicability of Section 114 of the Indian Evidence Act, 1872:
Section 114 allows the court to presume the existence of any fact likely to have happened based on the common course of natural events, human conduct, and business practices. The Referring Bench suggested that the complaint should contain necessary averments to raise the presumption of service of notice. However, the court clarified that Section 114 provides a general presumption, whereas Section 27 of the General Clauses Act offers a specific and stronger presumption regarding postal communications.

4. Presumption under Section 27 of the General Clauses Act, 1897:
Section 27 presumes that service of notice is effected when it is sent by registered post to the correct address. The court held that it is unnecessary for the complaint to aver that the notice was deemed served or that the addressee had knowledge of it. This presumption stands unless the addressee proves otherwise. The court cited precedents where due service was presumed even if the notice was returned with endorsements like "refused" or "not available."

5. Requirements for the Complaint under Section 138 of the Negotiable Instruments Act:
The court emphasized that the complaint must contain basic facts about the mode and manner of issuing the notice. At the time of taking cognizance, the court must be prima facie satisfied that the mandatory requirements of Section 138 are met. The drawer can rebut the presumption of service by proving lack of knowledge or incorrect address. This interpretation aims to protect honest drawers and prevent misuse of the provision by unscrupulous ones.

Conclusion:
The court reiterated the views expressed in K. Bhaskaran and D. Vinod Shivappa, affirming that the mandatory requirements under Section 138 were sufficiently complied with in the present case. The appeal was dismissed with no order as to costs.

← Previous Next →