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TMI Blog2007 (5) TMI 335X X X X Extracts X X X X X X X X Extracts X X X X ..... had a role to play in the matter of non-receipt of legal notice; or that the accused deliberately avoided service of notice, the same could have been entertained keeping in view the decision of this Court in Vinod Shivappa's case (supra) ?" 3. As it hardly needs emphasis that necessary averments in regard to the mode and the manner of compliance with the mandatory requirements of section 138 of the Act are required to be made in the complaint, from the format of the question, the scope of controversy appears to lie in a narrow compass but bearing in mind the fact that the issue raised has wider implication with regard to the very maintainability of the complaint itself, we deem it necessary to deal with the issue in little more detail. 4. Chapter XVII of the Act originally containing sections 138 to 142 was inserted in the Act by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 with the object of promoting and inculcating faith in the efficacy of banking system and its operations and giving credibility to negotiable instruments in business transaction. The introduction of the said Chapter was intended to create an atmosphere of fait ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... que in due course is required to give a written notice to the drawer of the cheque within a period of thirty days from the date of receipt of information from the bank regarding the return of the cheque as unpaid. Under clause (c), the drawer is given fifteen days time from the date of receipt of the notice to make the payment and only if he fails to make the payment, a complaint may be filed against him. As noted above, the object of the proviso is to avoid unnecessary hardship to an honest drawer. Therefore, the observance of stipulations in quoted clause (b) and its aftermath in clause (c) being a pre-condition for invoking section 138 of the Act, giving a notice to the drawer before filing complaint under section 138 of the Act is a mandatory requirement. 7. The issue with regard to interpretation of the expression 'giving of notice' used in clause (b) of the proviso is no more res integra. In K. Bhaskaran v. Sankaran Vaidhyan Balan [1999] 7 SCC 510, the said expression came up for interpretation. Considering the question with particular reference to scheme of section 138 of the Act, it was held that failure on the part of the drawer to pay the amount should be within fifteen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orrect address written on it, the principle incorporated in section 27 of the General Clauses Act, 1897 (for short 'G.C. Act') could profitably be imported in such a case. It was held that in this situation service of notice is deemed to have been effected on the sendee unless he proves that it was not really served and that he was not responsible for such non-service. 9. All these aspects have been highlighted and reiterated by this Court recently in D. Vinod Shivappa's case (supra). Elaborately dealing with the situation where the notice could not be served on the addressee for one or the other reason, such as his non-availability at the time of delivery, or premises remaining locked on account of his having gone elsewhere etc.; it was observed that if in each such case, the law is understood to mean that there has been no service of notice, it would completely defeat the very purpose of the Act. It would then be very easy for an unscrupulous and dishonest drawer of a cheque to make himself scarce for sometime after issuing the cheque so that the requisite statutory notice can never be served upon him and consequently he can never be prosecuted. It was further observed that once ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be decided on the basis of evidence. In such a case the High Court ought not to exercise its jurisdiction under section 482 of the Code of Criminal Procedure." 10. It is, thus, trite to say that where the payee dispatches the notice by registered post with correct address of the drawer of the cheque, the principle incorporated in section 27 of the G.C. Act would be attracted; the requirement of clause (b) of proviso to section 138 of the Act stands complied with and cause of action to file a complaint arises on the expiry of the period prescribed in clause (c) of the said proviso for payment by the drawer of the cheque. Nevertheless, it would be without prejudice to the right of the drawer to show that he had no knowledge that the notice was brought to his address. 11. However, the Referring Bench was of the view that this Court in D. Vinod Shivappa's case (supra) did not take note of section 114 of Evidence Act in its proper perspective. It felt that the presumption under section 114 of the Evidence Act being a rebuttable presumption, the complaint should contain necessary averments to raise the presumption of service of notice; that it was not sufficient for a complainant to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e commencement of this Act authorizes or requires any document to be served by post, whether the expression 'serve' or either of the expressions 'give' or 'send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post." 14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unity to the drawer to pay the cheque amount within 15 days of service of notice and thereby free himself from the penal consequences of section 138. In D. Vinod Shivappa's case (supra), this Court observed : "...One can also conceive of cases where a well intentioned drawer may have inadvertently missed to make necessary arrangements for reasons beyond his control, even though he genuinely intended to honour the cheque drawn by him. The law treats such lapses induced by inadvertence or negligence to be pardonable, provided the drawer after notice makes amends and pays the amount within the prescribed period. It is for this reason that clause (c) of proviso to section 138 provides that the section shall not apply unless the drawer of the cheque fails to make the payment within 15 days of the receipt of the said notice. To repeat, the proviso is meant to protect honest drawers whose cheques may have been dishonoured for the fault of others, or who may have genuinely wanted to fulfil their promise but on account of inadvertence or negligence failed to make necessary arrangements for the payment of the cheque. The proviso is not meant to protect unscrupulous drawers who never intende ..... X X X X Extracts X X X X X X X X Extracts X X X X
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