2018 (1) TMI 310 - HC - Indian Laws

Service of notice - Dishonor of cheque - Whether there is proper compliance of the service of the statutory notice as mandated under Section 138 of the Negotiable Instruments Act? - Held that - it appears that the revision petitioner has not collected the above postal cover from the concerned post office - both the Courts below have categorically held that intimation regarding the Ex.P3, legal notice has been duly served upon the revision petitioner and he failed to collect the same from the concerned Post Office, the same was returned. It is no doubt true that the receipt of the notice has to be proved, but if the notice is refused by the addressee, it may be presumed to have been served. In a case where notice is not claimed even though sent by registered post, with the aid of Section 27 of the General Clauses Act, the drawer of the cheque may be called upon to rebut the presumption which arises in favor of service of notice. However, no rule of universal application can be laid down that in all cases where notice is not served on account of non-availability of the addressee, the court must presume service of notice. There is no material to interfere with the conviction and sentence passed by the Courts below and accordingly, this Criminal Revision Petition is dismissed.

Summary

Issues:
- Compliance of service of statutory notice under Section 138 of the Negotiable Instruments Act
- Legality of conviction and sentence
- Excessive sentence award

Compliance of service of statutory notice under Section 138 of the Negotiable Instruments Act:
The case involved a private complaint for dishonour of a cheque issued by the revision petitioner. The complainant alleged that the accused borrowed a sum of ?8,00,000 and issued a cheque that was dishonored due to "Account closed." The accused claimed that the legal notice was sent to a wrong address, rendering it unserved. The complainant contended that the notice was duly served on the accused, and evidence was presented by both sides to support their claims.

The revision petitioner argued that the incorrect address on the legal notice resulted in non-service, thus challenging the validity of the criminal proceedings. On the other hand, the respondent argued that despite a minor error in the postal pin number, the notice was successfully served at the correct address where the revision petitioner resided. The revision petitioner relied on legal precedents regarding the necessity of proper service of notice, emphasizing the mandatory nature of such service under the Negotiable Instruments Act.

After thorough examination of the evidence and legal precedents, the Court determined that the service of the statutory notice was compliant with the requirements of Section 138 of the Negotiable Instruments Act. The Court considered the burden of proof on the complainant to show proper service, and based on the testimony of witnesses and application of relevant legal principles, concluded that the notice was effectively served on the revision petitioner. The Court cited Supreme Court judgments to support the presumption of service when notice is refused by the addressee, unless rebutted with evidence to the contrary.

Legality of conviction and sentence:
The revision petitioner challenged the order of conviction by both lower courts, arguing that the address error on the legal notice invalidated the criminal prosecution. The respondent defended the conviction, emphasizing the undisputed borrowal of money and issuance of the cheque for a legally enforceable debt. Witnesses, including the postmaster and defense witnesses, provided testimony regarding the service of the notice and the circumstances surrounding the dishonoured cheque.

The Court examined the evidence presented by both parties, including the testimonies of witnesses and legal arguments. After considering the legal framework and factual background of the case, the Court upheld the conviction and sentence passed by the lower courts. The Court found no grounds for interference in the revisional jurisdiction, concluding that the evidence supported the conviction and sentence.

Excessive sentence award:
The issue of whether the sentence award was excessive was raised during the proceedings. The revision petitioner's counsel contended that the conviction was unsustainable due to the alleged non-compliance with the statutory notice requirements. However, the Court, after thorough analysis of the evidence and legal principles, dismissed the revision petition and upheld the conviction and sentence. The Court also directed the trial court to secure the custody of the petitioner/accused to serve the remaining period of the sentence, indicating a strict approach towards the enforcement of the legal consequences of the dishonoured cheque case.