9911796707
TMI Blog2003 (8) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... accused borrowed a sum of Rs. 50,000/- for their business financial necessities and against which they issued an account payee cheque dated 30.7.1997 drawn on State Bank of Hyderabad, Shapurnagar Branch, towards repayment of the said borrowing. When the cheque was presented to the Bank, it was returned for insufficient funds. Thereafter, the complainant got issued legal notice dated 12.2.1998 to the accused by registered post and also under certificate of posting. But the accused managed to return the notice sent. Therefore, it is deemed service of notice. When the accused failed to pay the amount, the present complaint was lodged. On behalf of the complainant, P.Ws. 1 to 3 were examined and Exhibits P-1 to P-14 were marked. The lower Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the Bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money 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. 6. Section 139 of the Act prescribed that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability. 7. From the evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the record it is clear that the complainant had not sent the notices to the correct address of the accused. Therefore, presumption under Section 27 of the General Clauses Act cannot be drawn. The lower Court after considering the entire evidence on record rightly held that there was no constructive service of legal notice on the accused as contemplated under Section 138(d) of the Act. It is a mandatory provision and it is not only the duty of the complainant to send the notice, but also see that it is served on the accused. Of course, if the accused refused to receive the same, then it is deemed service of notice. That is entirely a different aspect. The return of a cover by registered post sent to a wrong address cannot be said to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been referred to a Constitution Bench. Until the Constitution Bench goes into the question and authoritatively lays down the law, we are of the view that the decision in Civil Appeal No. 4126 of 1988 holds the field . Unless the Supreme Court goes into the question and lays down the law in accordance with Article 141 of the Constitution, the decision rendered by the Division Bench of this Court in S.P. Sampathy's case (supra) holds good. 10. In view of the said decision, the complaint as such is not maintainable as it is filed through the General Power of Attorney holder, which is not permissible under law. Hence, there are no grounds to interfere with the order of acquittal. The criminal appeal is, accordingly, dismissed. - ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
