9911796707
TMI Blog2004 (11) TMI 515X X X X Extracts X X X X X X X X Extracts X X X X ..... there was no proper service of notice. Backgrounds facts in a nutshell are as follows: Complaint was filed by respondent no.1 alleging commission of offence punishable under Section 138 read with Section 142 of the Act. It was alleged that cheque dated 30.6.1997 bearing no. SB/A/31 839579 for an amount of Rs.80,000/- issued by the accused in discharge of the advance amount paid by the complainant in respect of the sale consideration was dishonoured by the drawee bank on account of insufficiency of funds. The complainant received this intimation on 2.8.1997. He got issued legal notice on 9.8.1997 through his advocate to the correct address of the accused. In the complaint, it is stated that the said legal notice was returned with an endors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be quashed or dismissed merely because the notice was not served on the accused or drawer, without enquiring into the circumstances leading to the non-service of notice. In support of the appeal learned counsel for the appellant submitted that basic requirement for initiation of proceeding is service of notice. If the complaint itself does not show that notice has been served, it is to be thrown out at the threshold as was rightly done by the learned Magistrate and the High Court erroneously interfered with it. Strong reliance was placed on Shakti Travel & Tours v. State of Bihar and Another (2002 (9) SCC 415), stating that when the complainant did not assert that demand notice has been served, the complaint was not maintainable. Lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oney to the payee 'or as the' case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice." On the part of the payee he has to make a demand by "giving a notice" in writing. If that was the only requirement to complete the offence on the failure of the drawer to pay the cheque amount within 15 days from the date of such "giving", the travails of the prosecution would have been very much lessened. But the legislature says that failure on the part of the drawer to pay the amount should be within 15 days "of the receipt" of the said notice. It is, therefore, clear that "giving notice" in the context is not the same as receipt of notice. Giving is a process of which receipt is the accomplishment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very provision is made by the legislature. The words in clause (b) of the proviso to Section 138 of the Act show that the payee has the statutory obligation to "make a demand" by giving notice. The thrust in the clause is on the need to "make a demand". It is only the mode for making such demand which the legislature has prescribed. A payee can send the notice for doing his part for giving the notice. Once it is despatched his part is over and the next depends on what the sendee does. It is well settled that a notice refused to be accepted by the addressee can be presumed to have been served on him (vide Harcharan Singh v. Shivrani (1981 (2) SCC 535) and Jagdish Singh v. Natthu Singh ((1992 (1) SCC 647). Here the notice is returned as ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essfully avoiding the notice. This position was noted by this Court in K. Bhaskaran v. Sankaran Vaidhyan Balan and Another (1999 (7) SCC 510). The object of notice is to give a chance to the drawer of the cheque to rectify his omission and also to protect an honest drawer. Service of notice of demand in clause (b) of the proviso to Section 138 is a condition precedent for filing a complaint under Section 138 of the Act. In the present appeal there is no dispute that notice was in writing and this was sent within fifteen days of receipt of information by the appellant-Bank regarding return of cheques as unpaid. Therefore, the only question to be examined is whether in the notice there was a demand for payment. (See Central Bank of India an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n for the expression 'giving notice' in the present context is that, if the payee has dispatched notice in the correct address of drawer reasonably ahead of the expiry of fifteen days, it can be regarded that he made the demand by giving notice within the statutory period. Any other interpretation is likely to frustrate the purpose for providing such a notice." Burden is on the complainant to show that the accused has managed to get an incorrect postal endorsement made. What is the effect of it has to be considered during trial, as the statutory scheme unmistakably shows the burden is on the complainant to show the service of notice. Therefore, where material is brought to show that there was false endorsement about the non-availability of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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