2024 (6) TMI 1098 - HC - Indian Laws

Dishonour of Cheque - service of notice - failure to produce an evidence that in fact the notice was served - 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 - The complainant issued and sent a demand notice on 28.01.2021 to the address of the accused person in terms of Section 138(b) of the Negotiable Instruments Act, 1881 and amendment thereto asking the accused person to pay the said amount within a period of 15 days from the date of receipt of the said notice. But the accused person has failed and neglected to pay the said amount covered by the said cheques and when he failed to pay the payment of the same amount covered by the aforesaid cheques, the complainant filed this case on 16th March, 2021 - 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. In the instant case, 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 1708 of 2021 is devoid on merit and required to be dismissed - application dismissed.

Summary

Issues:
Quashing of a complaint case under Section 482 of the Code of Criminal Procedure, 1973 based on the absence of postal receipt and acknowledgment due card for service of statutory notice under Section 138 of the Negotiable Instruments Act, 1881.

Analysis:
The petitioner sought to quash a Complaint Case under Section 138 of the Negotiable Instruments Act, 1881, arguing that the allegations were general and lacked specificity regarding legal debt and liabilities for issuing two cheques. The petitioner contended that the complainant failed to provide evidence of serving the statutory notice, a prerequisite for taking cognizance under Section 138. The court examined whether the absence of a track report or acknowledgment due card would render the proceedings illegal.

Upon reviewing the complaint, it was found that the cheques issued by the petitioner were dishonored due to insufficient funds, leading to the complainant sending a demand notice as required by Section 138 of the Act. The court noted that the complainant fulfilled the statutory requirements under Section 138 based on the complaint's contents.

Regarding the issue of service of notice, the court cited precedents emphasizing that when a notice is sent to the correct address by registered post, service is deemed effective unless proven otherwise by the addressee. The court highlighted the presumption under Section 27 of the General Clauses Act, stating that service of notice is deemed effective when sent to the correct address by registered post.

In line with Supreme Court decisions, the court held that the trial court had correctly presumed the service of the demand notice, placing the burden of proof on the claimant during trial. The court concluded that there was no illegality in the magistrate taking cognizance and issuing a summons to the accused. Consequently, the revision application was dismissed for lack of merit.

The judgment emphasized that the accused would have the opportunity to contest the claim during the trial, underscoring the procedural fairness in the legal process. The court directed the communication of the order to the lower court and allowed for the provision of a certified copy of the order to the parties upon request, adhering to legal formalities.