9911796707
TMI Blog2019 (7) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... ise in case the notice is correctly addressed. If the notice is incorrectly addressed no legal presumption can arise. In the present case, the complainant had annexed the letterhead of the petitioner containing the address mentioned in the statutory notice but specifically mentioning there in the correspondence address as that of New Friends Colony. It is not the case of the complainant that the petitioner was having an office or was ever found at Barakhamba Road, the address mentioned in the statutory notice. Section 138 of the Negotiable Instruments Act mandates the issuance of the statutory notice as a pre-condition to filing of a complaint. The cause of action to file a complaint under section 138 of the Negotiable Instruments Act arise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 138 of the Negotiable Instruments Act. 2. Petitioner who appears in person inter-alia contends that from the record it is clear that the statutory notice under Section 138 of the Negotiable Instruments Act was neither addressed to the correct address nor served to the petitioner. 3. It is submitted that the complainant had relied on an alleged acknowledgement of debt as on 31.03.2009 by an undated letter which was exhibited as Exh.CW1/2. It is submitted that in the said acknowledgement it was clearly mentioned that the correspondence address was A-123, Friends Colony (East), New Delhi. 4. He submits that the statutory notice exhibit CW-1/5 was not addressed to the correspondence address mentioned in the said alleged acknowledgemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reliance on the judgment of the Supreme Court in C.C. Alavi Haji vs Palapetty Muhammed & Anr., AIR 2007 SC (Suppl) 705. He submits that the said judgment would apply only in the case notice was correctly addressed. Admittedly in the present case notice was sent to an incorrect address at which the petitioner was not present. 10. He relies on the judgment in M/s. Ajeet Seeds Ltd. v. K. Gopala Krishnaiah, (2014) 12 SCC 685 wherein it has been held that presumption of service of notice would arise only in case the notice is correctly addressed. 11. Subject complaint was filed under Section 138 of the Negotiable Instruments Act contending that the cheque issued in the sum of ₹ 10 lacs had been dishonoured on account of 'insufficient fun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess as:- A-123, New Friends Colony (East) New Delhi - 110065. 18. Along with the complaint, complainant had also annexed the return envelope of the statutory notice as Ex. CW1/8. In support of the complaint, the complainant has filed an affidavit with the trial court dated 04.07.2011 marked as Ex. CW1/B, wherein the complainant had started that he had personally visited Dr. Gopal Dass Building, 28 Barakhamba Road after dispatch of the legal notice where office of the accused is situated. 19. It is stated that the accused namely, Dhruv Verma is the promoter/owner of the said building. Further, the complainant had deposed that the security guard in the building informed the complainant that the accused/owner of the building Mr Dhruv Verma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplaint. The cause of action to file a complaint under section 138 of the Negotiable Instruments Act arises only on issuance and service of statutory notice and failure of the accused to comply with the statutory notice. In the absence of service of statutory notice the cause of action would not accrue. Service of statutory notice would also include legal presumption of service if circumstances so warrant. 25. As noted above, in the present case there was admittedly no service of statutory notice and the presumption of service of the statutory notice also does not arise in the facts of the present case as the notice was not correctly addressed. 26. Both the trial court as well as the appellate court have rejected the contention of the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed case is that post 1991, a commercial complex had been built at 28 Barakhamba Road housing scores of offices. It is an admitted position that there was several floors and several offices of third parties. There is nothing on record to suggest that petitioner had any office in the said property. 30. A security guard posted at the building which houses several offices would not satisfy the condition of being an agent empowered to receive notices on behalf of the occupants of the building. Further the complainant had not placed on record any material to suggest that on the date when the notice was sent, the petitioner was in possession of an office or visited any office in the said building. 31. The affidavit of the petitioner had clearly ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
