Janak Kumar Joshi vs Suresh Kumar and Others

V.K. Ahuja, J.—This is an appeal filed by the appellant u/s 378 of the Cr.P.C. against the judgment of acquittal, dated 19.3.1997, passed by the learned Sub Divisional Judicial Magistrate, Nalagarh, in a criminal case against respondents u/s 138 of the Negotiable Instruments Act. The appellant was the complainant before the learned trial Court.

Briefly stated the facts of the case are that the appellant/complainant filed a complaint u/s 138 of the Negotiable Instruments Act as against the respondents, who were impleaded as accused persons. The learned trial Court issued notices to the respondents, put up notice of accusation u/s 138 of the Negotiable Instruments Act and on conclusion of the trial, the impugned judgment was passed by the learned trial Court acquitting the respondents.

Notice of the appeal was sent to the respondents, who did not put in appearance and were declared Proclaimed Offender in the case and, therefore, they are not represented by any counsel.

I have heard the learned Counsel for the appellant and have gone through the record of the case.

On appraisal of the judgment passed by the learned trial Court, it is clear that two grounds have been taken for the acquittal of the respondents. First ground taken was that whether respondents No. 1 and 2 had made a payment on behalf of the Company, which was a personal loan taken by them and whether the same payment could be made by them on behalf of the Company. The other ground taken by the learned trial Court was that the notice was issued to the respondents and it was received back with the report "refused". The learned trial Court observed that the report made by the postal authority is not only cryptic but vague also. It was also observed that in these circumstances, it was incumbent upon the complainant to have examined the Post Man to testify on oath about the refusal made by the accused in persons. The report made by the postal authority was held to be somewhat doubtful and, therefore, it was held that no presumption can be drawn in regard to the service of the notice.

My attention has been drawn by the learned Counsel for the appellant to a decision of the Apex Court in C.C. Alvi Haji v. Palapetty Muhammed and Anr. (2007) 3 SCC (Cri) 236, in which the following observations were made by their Lordships in para 14:

Section 27 of the 1897 Act gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. 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. The Supreme 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 station", due service has to be presumed.

It is, therefore, clear that when the notice is received with a postal endorsement "refused" or "not available in the house" or "house locked" or "shop closed" or "addressee not in station", due service has to be presumed. Once a presumption is drawn for due service, it is not for the complainant to substantiate the report by leading evidence, but it is for the other party to rebut the said presumption. No evidence had been led by the respondents in this regard and the learned trial Court wrongly held that no presumption can be drawn for due service and accordingly the onus was wrongly placed upon the complainant to have further substantiated, which observation of the learned trial Court is contrary to the decision of the Apex Court (supra).

Without expressing any opinion on the question as to whether the liability was personal, the appeal is allowed, the impugned judgment is set aside and the case is remanded back to the learned trial Court for fresh decision in accordance with law. Complainant, through his counsel, is directed to appear before the learned trial Court on 2.8.2010 and the learned trial Court shall proceed with the case in accordance with law.

The appeal stands disposed of accordingly.