Nazim vs State

Usha Mehra, J.—By this petition, the Petitioner has assailed the order passed by the learned Metropolitan Magistrate thereby dismissing the complaint of the Petitioner u/s 138 of the Negotiable Instruments Act (In short the ''Act'') against the Respondent. The main reason for dismissing the complaint was that notice under the provisions of Section 138 of the Act had not been served on the Respondent and, therefore, the complaint was not maintainable. The learned Metropolitan Magistrate refused to take cognizance and issue summons on the same, aggrieved by this order for non-issuing of summons, the present Petitioner preferred a revision petition. The Additional Session Judge again come to the same conclusion that since the notice dated 20th May, 1991 had not been served on the Respondent and that there was no averment in the complaint that notice was served on the accused, therefore, no cognizance could have been taken.

Aggrieved by these orders, the Petitioner has come up in this Court challenging this order, inter alia, on the ground that in the complaint it was averred that notices were sent by registered post and the Court ought to have drawn presumption that notices sent by registered post are deemed to have been served and that the Courts below have not exercised their jurisdiction properly.

This petition has been contested by Mr. R.D. Jolly, appearing for the State on the ground that second revision petition is not permissible and that there was no proof laid before the trial Court for the notice having been served on the accused, therefore, the orders are justified.

I have considered the contention s raised at bar by Learned Counsel for the parties. So far as the question of jurisdiction is concerned, if there is an error apparent on the face of the record, then this Court will not shirk from exercising its inherent jurisdiction. The provisions of Section 482 has to be used sparingly but that does not mean that when there is an error still this Court instead of doing justice should go into technicalities. In real sense it is not a second revision. The grievance of the Petitioner is that the Court below by ignoring the provision of law refused to exercise the power which were vested in them. Therefore, this Court in exercise of its inherent jurisdiction should correct the error. So far as the question of service of notice is concerned, both the Courts below fell in error in concluding that since A/D was not filed hence notice was not served. Clause 27 of the General Clauses Act clearly envisages that when a registered notice is posted, it is presumed to have been served unless rebuttal is given. In this case it is fully established that notice was sent by registered post. Postal receipt is exhibit I/D, therefore presumption under law was that it had been served. This presumption could be dispelled by the accused alone by proving otherwise. Therefore, to my mind, the trial Court erroneously held that notice was not served or that was not pleaded. The service of notice has been specifically pleaded in the complaint.

For the reasons stated above, I accept this petition and set aside the impugned order. Further direct the learned Metropolitan Magistrate to entertain the complaint and deal with the same in accordance with law.

The trial Court record be sent back forthwith.