9911796707
TMI Blog2024 (6) TMI 1098X X X X Extracts X X X X X X X X Extracts X X X X ..... .03.2021 pending before the learned Metropolitan Magistrate, 8th Court at Calcutta. The brief facts of the instant case are that the opposite party/complainant has filed an application under Section 138 of the Negotiable Instruments Act, 1881 before the learned Chief Metropolitan Magistrate at Calcutta and subsequently same was transferred to the learned Metropolitan Magistrate, 8th Court at Calcutta. After taking cognizance, the learned Magistrate has issued a summon upon the petitioner. After receiving the said summon, the petitioner filed this revisional application contending therein that the allegation levelled against the petitioner is general in nature and does not speak specifically about the legal debt and liabilities for issuing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the tune of Rs.1,50,579/- and Rs. 50,337/- towards full and/or part relinquishment of his legal debts and liability. The said cheque was placed for encashment through its banker, namely, HDFC Bank Limited but the said cheque was dishonoured and returned by the drawee bank for insufficient funds on 17.01.2021. On receipt of such information, the complainant issued and sent a demand notice on 28.01.2021 to the address of the accused person in terms of Section 138(b) of the Negotiable Instruments Act, 1881 and amendment thereto asking the accused person to pay the said amount within a period of 15 days from the date of receipt of the said notice. But the accused person has failed and neglected to pay the said amount covered by the said che ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Evidence Act and under Section 27 of the GC Act and pointed out how these two presumptions are to be employed while considering the question of service of notice under Section 138 of the NI Act. The relevant paragraphs read as under: "13. According to Section 114 of the Act, read with Illustration (f) thereunder, when it appears to the Court that the common course of business renders it probable that a thing would happen, the Court may draw presumption that the thing would have happened, unless there are circumstances in a particular case to show that the common course of business was not followed. Thus, Section 114 enables the Court to presume the existence of any fact which it thinks likely to have happened, regard being had to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ost. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further 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. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement 'refused' or 'not available in the house' or 'house locked' or 'shop closed' or 'addressee not in stati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the claimant to prove his case at the time of trial. At the same time, accused person also gets opportunity to contest the same during trial.
Under the above circumstances, this Court does not find any illegality or infirmity in taking cognizance by the learned Magistrate and issue summon upon the accused person. Accordingly, CRR 1708 of 2021 is devoid on merit and required to be dismissed.
Consequently, CRR 1708 of 2021 is thus, dismissed without any order as to costs.
Let a copy of this order be communicated to the learned lower court for information.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties as expeditiously as possible taking all legal formalities. X X X X Extracts X X X X X X X X Extracts X X X X
|
