2017 (5) TMI 1786 - HC - Indian Laws

Dishonor of Cheque - presumption of service of notice - rebuttal of presumption - delay in the conclusion of the case - HELD THAT - Facts of the present case shows that despite institution of the complaint case in the year 2013 by the opposite party No. 2 against the applicant the case could not be concluded for one reason or the other without any fault on the part of opposite party No. 2. The conduct of the applicant shows an effort on his part to defeat the very object of Section 138 which has been enacted to enhance the acceptability of cheque in settlement of liabilities by making the drawer liable for payment of amount for which the cheque was dishonoured. Perusal of Section 27 of the General Clauses Act as clearly indicates that there is a presumption of service by registered post. The provisions of the aforesaid Section 27 of the Act regarding presumption of service has been interpreted by Hon ble Supreme Court and it has been held that there is a rebuttable presumption of service by registered post - It has also been well settled by Hon ble Supreme Court that when notice is sent at the correct address by registered post and neither acknowledgment nor undelivered registered cover is received back then there is presumption of service although rebuttable. The burden to rebut presumption lies on the party challenging the factum of service. In the present case it is undisputed that the notice under Section 138(b) of the N.I. Act was sent by the opposite party No. 2 by registered post to the applicant at the correct address. The facts in this regard have been clearly stated in the complaint filed by opposite party o.2. The drawer of the cheque i.e. the applicant has completely failed to rebut the presumption about the service of notice. He has also failed to show that he had no knowledge that the notice was brought to his address or that the address mentioned at the cover was incorrect or that the letter was never tendered. Under the circumstances there is presumption of service of notice sent by opposite party No. 2 to the applicant herein by registered post. Application dismissed.

Summary

Issues Involved:
1. Limitation period for filing the complaint under Section 138 of the Negotiable Instruments Act.
2. Summoning of the applicant without taking evidence.
3. Service of notice under Section 138 of the Negotiable Instruments Act.

Detailed Analysis:

1. Limitation Period for Filing the Complaint:
The applicant contended that the complaint was filed beyond the limitation period as mandated by the Supreme Court in Dashrath Rupsingh Rathod v. State of Maharashtra (2014). The complaint was initially filed in Rajasthan and later returned to be filed in Agra. The court noted that the exact date when the complaint was returned was not provided by the applicant. The Supreme Court's judgment in Dashrath Rupsingh Rathod allows for complaints to be refiled within 30 days of return and be deemed within the prescribed time unless the initial filing was time-barred. The court found no evidence that the complaint was not refiled within the permissible period and thus held that the complaint was filed within time.

2. Summoning of the Applicant Without Taking Evidence:
The applicant argued that he was summoned without the court taking evidence. The court found this argument unsubstantiated as the complaint was supported by an affidavit and all relevant documents, including the original cheque, cheque return memo, and notice copies, were filed. The court held that the summoning was in accordance with the law.

3. Service of Notice:
The applicant claimed that the notice under Section 138 was not served. The court observed that the notice was sent by registered post to the correct address. Under Section 27 of the General Clauses Act, there is a presumption of service if the notice is properly addressed and sent by registered post. The court cited several Supreme Court judgments affirming this presumption and noted that the applicant failed to rebut it. Therefore, the court concluded that the notice was duly served.

Conclusion:
The court dismissed the application, finding no merit in the arguments presented by the applicant. The complaint was filed within the permissible period, the summoning was lawful, and the notice was duly served. The court emphasized the purpose of Section 138 of the Negotiable Instruments Act, which aims to enhance the credibility of cheques in business transactions and punish those who issue cheques without intending to honor them.