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TMI Blog2022 (6) TMI 817X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in bank for encashment but it was dishonoured on 05.08.2015. The applicant has issued demand notice to opposite party no. 2 on 24.08.2015 at his last given address but it was returned back with endorsement dated 02.09.2015 to the effect that despite going for several times, opposite party no. 2 is not available at the given address. Thereafter, the applicant has filed a complaint under Section 138 of N.I. Act on 29.09.2015 and after applying the due procedure of law, the opposite party no. 2 was summoned by the court of Additional Chief Judicial Magistrate, Court no. 1, Meerut vide order dated 27.11.2015. It was further submitted that the said order dated 27.11.2015 was challenged by opposite party no. 2 by filing a criminal revision no. 139 of 2020 and the said revision was allowed by the court of Sessions Judge, Meerut vide impugned order dated 03.11.2020. Learned counsel submitted that in view of the report of postal department that despite going at the last given address of opposite party no. 2 for several times, the addressee is not available at the said address, it shall be deemed that notice has been duly served upon opposite party no. 2 and thus, the observation of the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C. No. 98 of 2020), decided on 31.01.2020. 5. I have considered the rival submissions of learned counsel for the parties and perused the record. 6. Dealing with similar issue, in the case of Ajeet Seeds Ltd. (supra), the Hon'ble Apex Court has held (in paragraph nos. 10 and 11) as under: 10. It is thus clear that Section 114 of the Evidence Act enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. Section 27 of the G.C. Act gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. It is not necessary to 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. 11. Applying the above conclusions to the facts of this case, it must be held that the High Court clearly erred in quashing the complaint on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in station, due service has to be presumed. [Vide Jagdish Singh Vs. Natthu Singh ; State of M.P. Vs. Hiralal & Ors. and V.Raja Kumari Vs. P.Subbarama Naidu & Anr. ] It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved. 14. Insofar as the question of disclosure of necessary particulars with regard to the issue of notice in terms of proviso (b) of Section 138 of the Act, in order to enable the Court to draw presumption or inference either under Section 27 of the G.C. Act or Section 114 of the Evidence Act, is concerned, there is no material difference between the two provisions. In our opinion, therefore, when the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of Clause (b) of proviso to Section 138 of the Act stands complied with. It is needless to emphasise that the complaint must contain basic facts regarding the mode and manner of the issuance of no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, at this stage, it cannot be said that no proceedings under Section 138 of the Act could be drawn against the applicant. The Magistrate at the stage of summoning has only to see whether a prima facie case is made out or not. The factum of disputed service of notice requires adjudication on the basis of evidence and the same can only be done and appreciated by the trial court and not by this Court under the jurisdiction conferred by Section 482 Cr.P.C. 9. In the case of Ali Jan (supra), relied by learned counsel for opposite party no. 2, the co-ordinate Bench of this Court has held as under:- Having heard the arguments advanced across the Bar and pleadings advanced and having perused the record, I find two material aspects coming out from the pleadings very clearly: one that notice dated 7th October, 2016 infact was sent by registered post and, therefore, it cannot be said that notice was sent on itself, and second, it clearly comes out from the record that there is no whisper regarding effective service of notice at the end of the complainant in the complaint. The complainant has not mentioned as to when he received back envelop containing notice and whether after receivi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheque and that in the absence of any such date of service of demand notice, the presumption under Section 27 of the General Clauses Act stands rebutted and thus, the mandatory conditions for institution of complaint under Section 138 of N.I. Act are not fulfilled. Here it may be mentioned that the complainant has filed the copy of the undelivered registered letter before the court below, wherein there is endorsement dated 02.09.2015 of postal department that It is not in dispute that the registered letter of demand notice was sent on the correct address of opposite party no. 2. Thus, in view of law laid down in case of Ajeet Seeds (Supra) and C.C. Alavi Haji (Supra), it shall be deemed that notice has been served upon the drawer/opposite party no. 2 on 02.09.2015. As noticed above, the complainant was not required to aver in the complaint that in spite of return of notice unserved, it is deemed to have been served. In view of these facts and circumstances of the case and above-stated position of law, it appears that the learned Sessions Judge did not consider the matter in correct perspective and committed error by setting aside the summoning order. Further, as observed in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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