2024 (3) TMI 174 - HC - Indian Laws

Dishonour of Cheque - complainant could not show, by producing any evidence that in fact the notice was served on him - Onus to prove on complainant - non-fulfilment of essential condition for taking cognizance, as provided under Section 138 clause (c) read with section 142(1)(b) of the NI Act - whether non-filing of track report or acknowledgement due card would illegal to proceed with the case filed under Section 138 of the Negotiable Instruments Act, 1881 or not? - HELD THAT - It appears from the complaint itself the requirements as provided under Section 138 of the Negotiable Instruments Act, 1881 have been fulfilled by the complainant. So far as the issue raised by the petitioner that no postal track report has been filed by the petitioner to show actual service of notice under Section 138 of Negotiable Instruments Act, 1881. The complainant has issued a demand notice to the correct address of the accused person. No envelope returned back to the claimant. So it seems notice is properly served. In several decisions, the Hon ble Supreme Court of India held that when the notice is served upon the actual or proper address of the addressee, it shall be deemed to be properly served unless contrary is proved. The trial Court seems to have drawn a presumption of law with regards to service of demand notice. Furthermore, onus lies upon the claimant to prove his case at the time of trial. At the same time, accused person also gets opportunity to contest the same during trial. This Court does not find any illegality or infirmity in taking cognizance by the learned Magistrate and issue summon upon the accused person. Accordingly, CRR 1710 of 2021 is devoid on merit and required to be dismissed.

Summary

Issues involved:
The issues involved in the judgment are the quashing of a Complaint Case under Section 482 of the Code of Criminal Procedure, 1973, regarding a Cheque No. 825321 dated 10th January, 2021, pending before the learned Metropolitan Magistrate, 8th Court at Calcutta.

Summary:

The petitioner sought quashing of a Complaint Case under Section 482 of the Code of Criminal Procedure, 1973, related to a cheque dishonored under Section 138 of the Negotiable Instruments Act, 1881. The petitioner argued that the complaint did not specifically address the legal debt and liabilities for issuing the cheque. Additionally, the petitioner contended that the complainant failed to provide evidence of serving a statutory notice under Section 138 of the Act, as no postal receipt or acknowledgment due card was submitted. The main contention was the lack of evidence proving the service of notice on the accused person.

Upon review, the court found that the complainant had fulfilled the requirements under Section 138 of the Negotiable Instruments Act, 1881. The court noted that the complainant had issued a demand notice to the correct address of the accused person, and no envelope was returned, indicating proper service. Citing previous Supreme Court decisions, the court explained the presumptions under Section 114 of the Evidence Act and Section 27 of the General Clauses Act regarding service of notice. The court emphasized that when a notice is sent to the correct address by registered post, service is deemed to be effected unless proven otherwise by the addressee.

In light of the legal presumptions and the complainant's actions, the court found no illegality in the magistrate taking cognizance and issuing a summons to the accused person. The court dismissed the revisional application, stating it was devoid of merit. The judgment concluded by dismissing the application without costs and directed a copy of the order to be communicated to the lower court for information, with urgent supply of certified copies if requested by the parties.