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TMI Blog2004 (10) TMI 639X X X X Extracts X X X X X X X X Extracts X X X X ..... calling upon the accused to make the payment of Rs. 90,000/- within a period of 15 days from the receipt of the said notice. 3. As the said notice was not complied with, the complainant filed a complaint on or about 21st November, 2000, and thereafter, in the course of the trial, the complainant examined their Secretary and produced necessary documents including the said cheque, notice, etc. 4. The learned Judicial Magistrate, First Class, has acquitted the accused on two counts. The first is on the basis that the A.D. card produced by the complainant it could not be said that the accused had received the said notice. The second is that what was due and payable by the accused to the complainant as on the date of issuance of the said cheque on 30th September, 2000, was Rs. 86,089/- and, therefore, there was no existing liability on the part of the accused to pay Rs. 90,000/- being the amount of the cheque issued to the said complainant. 5. Admittedly, the learned Judicial Magistrate, First Class, has concluded that the notice issued was addressed to the accused at her business address, an address which was given by the accused when she obtained the said loan as well as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... return of the cheques, as unpaid. Section 27 of the General Clauses Act, 1897, deals with meaning of service by post and provides that where any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression serve or either of the expression 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. 9. In the case of Madan and Co. v. Wazir Jaivir Chand AIR1989SC630 the Apex Court was dealing with a notice despatched by registered post and in this context, the Supreme Court stated that all that a landlord can do to comply with this provision is to post an acknowledgment due or otherwise containing the tenant's correct address and once he does this and the letter is delivered to the post office, he has no control over it. It is then presumed to have been delivered to the address ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned and that the correctness of the address as mentioned in the cause title of the notice as well as on the acknowledgment was not in dispute. The Court, therefore, concluded that since the despatch of notice by registered post was not under challenge a presumption that notice/letter had reached and delivered to the addressee could be raised under Section 116 of the Indian Evidence Act. Since the address was correct and the letter posted by ordinary course reaches to the addressee the Court had no hesitation in raising presumption that the notice in question did reach to the addressee and had been delivered to the addressee or any authorised person on his behalf and, therefore, the contention was rejected. 11. In the case of K. Bhaskaran v. Sankaran Vaidhyan Balan 1999CriLJ4606 the Apex Court was considering whether a cause of action would arise in a case where the notice was returned with endorsement as unclaimed and the Apex Court observed that 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 giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r did not return back it is a situation which was not at all contemplated either by Section 27 of the General Clauses Act or Section 11 of the Indian Evidence Act. The Court further observed that service shall be deemed to have been effected by (1) properly addressing, (2) pre-paying, and (3) posting of registered post and once the said requirements were complied with the raising of presumption of deemed service were made out. 13. In the case of Basant Singh v. Roman Catholic Mission [2002]SUPP3SCR70 , the Apex Court again dealing with Section 27 of the General Clauses Act in relation to Order 5, proviso to Sub-rule (2) of Rule 19-A, C.P.C. observed that once it is proved that summons were sent by registered post to a correct and given address, the defendants' own conduct becomes important. The Apex Court observed that the presumption both under Section 27 of the General Clauses Act, 1897 as well as Order 5, proviso to Sub-rule (2) of Rule 19-A, C.P.C. were rebuttable and it was always open to the defendants to rebut the presumption by leading convincing and cogent evidence. In the context of the facts of that case, the Apex Court observed that the defendants could have exam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed again and after its dishonour another statutory notice was issued to the accused which was received by the accused on 27-7-1998. 16. The submission made on behalf of the accused that the ratio of K. Bhaskaran's case 1999CriLJ4606 will not be attracted to the case at hand cannot be accepted. This is a case where the notice was sent at the business address of the accused and was received at the business address of the accused, about which there is no dispute. If the presumption available under Section 27 of the General Clauses Act, 1897 can be imported in a case where the notice is returned as unclaimed it can with equal force if not more be imported in a case where the postal article is received at the business address of the accused irrespective of whether it was received by the accused himself or herself or by some other member of his or her family. No doubt, the presumption under Section 27 of the General Clauses Act, 1897 is a rebuttable presumption but the said presumption cannot be rebutted by an accused only by denying the receipt of the notice in the statement under Section 313 of the Code of Criminal Procedure, 1973. Certainly, something more than that is requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and not Rs. 90,000/-, being the value of the cheque which was issued in favour of the complainant. The learned Judicial Magistrate, First Class, relied on the case of Shanku Concretes Pvt. Ltd. v. State of Gujarat (2000)2GLR753 and held that since the cheque issued was not in discharge of the existence debt or liability, the provisions of Section 138 of the Negotiable Instruments Act, 1881 would not be attracted. 17. Section 138, inter alia, provides that where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the Bank unpaid, either because of the amount of money outstanding to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that Bank, such person shall be deemed to have committed an offence and shall, without prejudice to any provisions of this Act, be punished with imprisonment for a term ... etc. In other words, Section 138 provides for issuance of a cheque towards debt or other l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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