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TMI Blog2023 (11) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... case dates are not revealed in the complaint, the same can be inferred from the paper on record. In this case the complainant, in his complaint, clearly stated that the notice was sent through a registered post on 19.11.2019 and that it was never returned to the complainant. In view of the above statement in the complaint and in view of the papers produced viz, the cheque, the Bank memo, demand notice, the disclosure of material dates like, date of dishonour, date of sending the notice, the date on which 15 days elapsed, the date of the filing of the complaint clearly and explicitly mentioned in para no. 12 of the complaint, there remains no doubt that the petition is wholly without merit. It may specifically be noted that para no. 12 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itesh Kumar Singh filed a complaint under section 138 read with section 142 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the N.I. Act ), with the allegation that during business transactions between the two sides, an amount of Rs. 12,50,000/- became due on him. As part payment thereof, the opposite party issued a cheque. The cheque was returned to the complainant without encashment with the remark that 'Debit not Allowed . The complainant, therefore, issued a demand notice within time by registered post. The opposite party did not repay the amount within 15 days of its service, therefore, he filed a complaint. 4. The submission of the petitioner is that there is nothing to suggest that demand notice was served ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on the accused. It is further argued that no evidence has been given to demonstrate that notice was served on a particular date. The contention is that where no particular date of service of notice has been disclosed, the time period of 15 days cannot be presumed to run from some unknown day and therefore the cognizance could not be taken. 8. The petitioner has referred to a judgment of the Supreme Court in Dashrathbhai Trikambhai Patel vs. Hitesh Mahendrabhai Patel and Another; 2022 (4) Civil Court Cases 279 (S.C.) and a judgment of Allahabad High Court in Deepak Kumar and Another vs. State of U.P. and Another; 2007 (2) Civil Court Cases 467 (Allahabad). I went through the judgments. In para no. 7, the High Court enumerated essentials ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entertain the complaint within the prescribed period of limitation and complaint not being time-barred). If these dates are not perceptible from the complaint or papers accompanying it then the Magistrate has not jurisdiction to entertain the complaint for offense under Section 138, NI Act. 9. From the above observation, this much is clear that the date of the receipt of notice is very much important but it is not necessary that any particular date as regard receipt of demand notice should mandatorily be mentioned in the complaint itself. In judgment of Deepak Kumar and Another (supra), this High Court observed that in case dates are not revealed in the complaint, the same can be inferred from the paper on record. 10. The Supreme Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been followed in particular cases. When applied to communications sent by post, Section 114 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. But the presumption that is raised under Section 27 of the G.C. Act is a far stronger presumption. Further, while Section 114 of Evidence Act refers to a general presumption, Section 27 refers to a specific presumption. For the sake of ready reference, Section 27 of G.C. Act is extracted below: 27. Meaning of service by post.- Where any Central Act or regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression 'serve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C 523 and V.Raja Kumari Vs. P.Subbarama Naidu Anr. (2004) 8 SCC 74] 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. 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 GC 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 nece ..... X X X X Extracts X X X X X X X X Extracts X X X X
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