2009 (5) TMI 968 - HC - Indian Laws

Summary

Issues Involved:
1. Whether the complainant must produce proof of despatch of the notice at the pre-summoning stage under Section 138 of the Negotiable Instruments Act (NI Act).
2. Whether the presumption of service of notice can be drawn under Section 27 of the General Clauses Act, 1897 (GC Act).
3. The applicability of Section 144 of the NI Act in the context of service of legal notice.
4. The requirement of an affidavit proving the accused's residence at the address to which the notice was sent.

Issue-wise Detailed Analysis:

1. Proof of Despatch of Notice at Pre-summoning Stage:
The court examined whether the complainant must produce proof of despatch of the notice at the pre-summoning stage under Section 138 NI Act. The complaint was dismissed by the Metropolitan Magistrate (MM) because the complainant did not provide proof of delivery, such as a delivery report, signed acknowledgment due card, or an internet-generated report. The MM held that without such proof, it would be unsafe to presume service of the notice, which is a prerequisite for taking cognizance of the offence under Section 138 NI Act.

2. Presumption of Service under Section 27 GC Act:
The petitioner argued that since the notice was sent by registered post, Section 27 of the GC Act should be invoked to presume service. The MM, however, concluded that the presumption of service could not be automatically drawn unless there was evidence like a delivery report or postal endorsement. The court emphasized that the presumption under Section 27 GC Act applies only when the complainant can show that the notice was sent to the correct address and there is some feedback from the postal department or courier service.

3. Applicability of Section 144 NI Act:
The court discussed Section 144 NI Act, which allows summons to be sent by speed post or courier service and considers them duly served if an acknowledgment or postal endorsement is received. The court reasoned that the same standard should apply to the service of legal notices before filing a complaint. This ensures that the address used for sending the notice and the summons is consistent, preventing the complaint from being stalled due to non-service of summons.

4. Requirement of an Affidavit:
The court held that merely filing an affidavit stating that the accused resides at the address given in the legal notice is insufficient. The affidavit must include further proof, such as a postal certificate or an endorsement by a courier service agency, confirming that the accused resides at the address and is refusing to accept the notice. Without such documentary proof, the affidavit does not satisfy the requirements of Section 138(b) read with Section 138(c) NI Act.

Conclusion:
The court upheld the MM's decision, emphasizing that the complainant must provide some form of proof of delivery of the legal notice to satisfy the requirements under Section 138 NI Act. The petition was dismissed, reinforcing the need for strict adherence to procedural requirements to ensure the effectiveness of the penal provisions in the NI Act.