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TMI Blog2019 (10) TMI 806X X X X Extracts X X X X X X X X Extracts X X X X ..... a private complaint against the applicant for the commission of offence punishable under Section 138 of N.I.Act before the Judicial Magistrate First Class, Indore agitating that the applicant and respondent had good relation with each other being colleagues in their office and the applicant was in requirement of money for his business needs and approached for respondent for getting loan and respondent gave him total Rs. 2,40,000/- on 10.02.2015, 06.09.2016 and 07.11.2017. When the respondent asked for repayment of the said amount from the applicant, discharging his part liability, the applicant gave Rs. 25,000/- cash and for remaining amount of Rs. 2,15,000/-, he issued three cheques, first bearing No.115823 dated 01.04.2018 for Rs. 35,000/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the notice sent by the respondent/complainant through registered post before instituting the complaint was returned unserved to the respondent and thereafter he did not make any further attempt to serve the notice to the applicant and filed the complaint. The acknowledgment card of the registered post of said notice, clearly shows that there are no signatures or acknowledgment of the applicant or anyone else on the same. Further, the postal remarks on the envelope of such registered post also have remarks " Praptkarta Aseemit Samay Ke Liye Bahar Gaye Hain, Atah Wapas" , which does not show that it is served on the applicant. Despite this, the court below entertained the complaint and had taken cognizance against the applicant clearly ign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dvanced by the learned counsel for the parties and perused the documents filed alongwith the petition. 7. The contents of the complaint filed before the Judicial Magistrate first Class, Indore reflects that the allegation have been levelled against the applicant for commission of offence under Section 138 of N.I. Act. It is not disputed that the applicant took loan of Rs. 2,40,000/- from the respondent/complainant and for repayment of the said amount, he gave Rs. 25,000/- in cash and for remaining of Rs. 2,15,000/- he had issued three cheques in favour of the respondent/complainant and when the respondent/complainant has deposited the said cheques in his bank account for encashment, then they were returned to him with the remarks " Kindly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to pay the cheque amount within the 15 days from the date of receipt of the notice, the cause of action for filing the complaint under Section 138 of N.I. Act. 9. Admittedly, the notice under Section 138 of N.I. Act was sent to the applicant/accused through registered post on his correct address. It is well settled that once notice has been sent by registered post with acknowledgment, it must be presumed that the service is made effective. In the case of V. Raja Kumari vs P. Subbarama Naidu & Anr ,(2004) (8) SCC 774, the Hon'ble Apex Court has held that statutory notice under Section 138 of the Act sent to the correct address of the drawer has been served has to be decided during trial and the complaint ought not to be dismissed at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on it and where he had proved such dispatch through original receipts that presumption of service by post under Section 27 of General Clauses Act is rebuttable. But such rebuttal does not assume finality merely because of the sendee's denial to receive the notice. It would be so only where the sendee proves that he had not in fact received the notice and that he was not responsible for such non-service. 13. In Madhu v. Omega Pipes Ltd. [1994 (1) ALT (Crl.) 603 (Kerala)] the scope and ambit of Section 138 clauses (b) and (c) of the Act were noted by the Kerala High Court and observed as follows: "In Clause (c) of the proviso the drawer of the cheque is given fifteen days from the date 'of receipt of said notice' for making pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act." 15. It has been further argued on behalf of the applicant that the cheque had got dishonored for reason " Kindly contact drawer/drawee bank and pleasen." and not for the fund insufficient. Now the onus to prove this was upon the applicant and he can summon the bank record to show that at the relevant time period when the cheque in question was presented, he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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