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2022 (6) TMI 817 - HC - Indian LawsDishonor of Cheque - valid service of demand notice or not - rebuttal of presumption under Section 27 of General Clauses Act read with Section 139 of N.I. Act - HELD THAT - It may be observed that the summoning order passed by the court of Additional Chief Judicial Magistrate, Court No. 1, Meerut was quashed by the learned Sessions Judge, Meerut merely on the ground that in the complaint it has not been mentioned as to on which date the notice was served upon opposite party no. 2/drawer of the cheque and that in the absence of any such date of service of demand notice, the presumption under Section 27 of the General Clauses Act stands rebutted and thus, the mandatory conditions for institution of complaint under Section 138 of N.I. Act are not fulfilled. In view of law laid down in case of Ajeet Seeds 2014 (8) TMI 464 - SUPREME COURT and C.C. Alavi Haji 2007 (5) TMI 335 - SUPREME COURT , it shall be deemed that notice has been served upon the drawer/opposite party no. 2 on 02.09.2015. The complainant was not required to aver in the complaint that in spite of return of notice unserved, it is deemed to have been served. In view of these facts and circumstances of the case and above-stated position of law, it appears that the learned Sessions Judge did not consider the matter in correct perspective and committed error by setting aside the summoning order. The impugned order dated 03.11.2020, passed by the learned Sessions Judge, Meerut is set aside and the summoning order passed by the court of Additional Chief Judicial Magistrate, Court no. 1, Meerut stand restored - Application allowed.
Issues Involved:
1. Validity of the service of demand notice under Section 138 of the Negotiable Instruments Act (N.I. Act). 2. The presumption of service under Section 27 of the General Clauses Act. 3. The correctness of the summoning order by the Additional Chief Judicial Magistrate. 4. The legality of the revisional court's order setting aside the summoning order. Detailed Analysis: Issue 1: Validity of the Service of Demand Notice under Section 138 of the N.I. Act The applicant argued that the demand notice, sent to the last known address of the opposite party, was returned with an endorsement that the addressee was not available. The applicant contended that this should be deemed as valid service under the N.I. Act. The opposite party countered that there was no valid service of the demand notice and the complaint did not specify when the cause of action arose, rendering the complaint non-maintainable. Issue 2: The Presumption of Service under Section 27 of the General Clauses Act The applicant relied on the presumption under Section 27 of the General Clauses Act, which states that service of notice is deemed to have been effected when sent to the correct address by registered post, unless the contrary is proven. The court referenced several precedents, including C.C. Alavi Haji v. Palapetty Muhammed And Ors. and Ajeet Seeds Ltd. v. K. Gopala Krishnaiah, which supported the presumption of service unless rebutted by the addressee. Issue 3: The Correctness of the Summoning Order by the Additional Chief Judicial Magistrate The court noted that the summoning order was issued after considering the relevant facts and materials on record. The applicant argued that the revisional court erred in disputing the service of notice, which should be examined during the trial. The court emphasized that the factum of disputed service requires evidence and should be adjudicated by the trial court, as supported by the precedent in Anil Kumar Goel v. State of U.P. And Another. Issue 4: The Legality of the Revisional Court's Order Setting Aside the Summoning Order The revisional court had set aside the summoning order on the grounds that the complaint did not mention the date of service of the demand notice, thus rebutting the presumption under Section 27 of the General Clauses Act. The High Court found that the revisional court did not consider the matter correctly. The court highlighted that the registered letter was sent to the correct address and, based on the precedents, it should be deemed served. The revisional court's decision was deemed erroneous for not recognizing the presumption of service. Conclusion: The High Court set aside the revisional court's order dated 03.11.2020 and restored the summoning order issued by the Additional Chief Judicial Magistrate, Court No. 1, Meerut. The trial court was directed to proceed and decide the matter in accordance with the law. The application under Section 482 Cr.P.C. was allowed.
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