Naveen Shetty vs Rajesh Poojary

K.N. Phaneendra, J.—Heard the learned counsel for the petitioner and perused the records.

The petitioner herein lodged a private complaint against the respondent alleging the offence punishable under Section 138 of the Negotiable Instruments Act.

In the complaint (a copy of which is produced before this court), it is categorically averred that the complainant has issued a legal notice after the cheque issued by the respondent being bounced and an endorsement being issued by the Bank Authorities mentioning the correct address of the respondent under a Registered Post and after lapse of 15 days, after the service of notice, the complaint came to be filed. In fact, the accused appeared before the court and contested the proceedings. It appears, during the pendency of the proceedings, the accused has denied receipt of notice. Therefore, in order to prove the service of notice to the accused, the petitioner herein, as a complainant, filed an application to refer the Registered Post Acknowledgement to the FSL for examination and report. The said application came to be dismissed by the trial Court holding that the service of notice by way of registered post raises a presumption in favour of the complainant. Even otherwise, that can be proved by means of examining the Post Man, who delivered the cover to the addressee. Therefore, sending the said document to the Handwriting Expert or to the FSL does not arise. Against the said order passed by the learned Magistrate, the complainant approached this court.

It is seen from the records that there is a specific averment in the complaint and also in the evidence of the complainant that he issued a legal notice under Section 138 of the N.I. Act under Registered Post Acknowledgement Due and Ex. P4 is the Acknowledgement of the accused, which is placed before the court. According to the complainant, it bears the signature of the accused or even any person who may be authorized by the accused to receive such notice. When once the letter is addressed to the correct address of the accused and if it is shown to the court that the said letter has been addressed to the accused and acknowledgement returned duly served, according to the General Clauses Act, the Court has to raise a presumption that it has been reached the destination, even, in fact the notice might not have been served on the accused. If the accused person takes-up the contention that the notice has not been served upon him, by virtue of the presumption raised in the complaint, the burden shifts on to the accused to establish that the said notice has not been served upon him. In this regard, it is worth to refer Section 27 of the General Clauses Act, which reads as under: -

"Section 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" or either of the expressions "give" or "send" or any other expression used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."

The said Section clearly indicates that the court has to raise a presumption at the initial stages. Unless a different intention appears in the service of notice sent through post to the correct address of the accused, the court has to presume that the notice has been deemed to be effected on the person to whom it was sent.

It is also worth to note here a decision of the Hon''ble Supreme Court in this regard in Jagdish Singh Vs. Natthu Singh, , wherein the Apex Court has also observed that whether the notice sent by the landlord by Registered Post and the same is returned by the tenant with an endorsement on refusal, it will be presumed that the notice has been served. This also indicates that even a notice has not been taken by the accused by means of signing the acknowledgement and if it returns back on refusal, then also the court has to presume that service of notice as ''served''. Section- 27 of the General Clauses Act indicates that, once the notice is sent to the correct address by means of addressing, pre-paying and posting by registered post, then the court has to presume that it reached its destination, subject to the rebuttal by the other side who takes-up the contention that the said notice has not been served. Therefore, in my opinion, the learned Magistrate has rightly passed the order raising a presumption in favour of the complainant and it becomes the responsibility of the accused to show that the notice has not been served upon him.

With the above observations, I am of the opinion that the petition is not maintainable and the same deserves to be dismissed. Accordingly, the petition is dismissed.