Cr.M.P.(M) No.513 of 2006

23rd November, 2006

Petitioner Counsel: N. K. THAKUR
Respondent Counsel: RAKESH JASWAL

Cases Cited:
Raja Kumari Vs. P. Subbarama Naidu, 2005 ALL MR (Cri) 269 (S.C.)=(2004)8 SCC 774 [Para 7]
D. Vinod Shivappa Vs. Nanda Belliappa, 2006(4) ALL MR 145 (S.C.)=(2006)6 SCC 456 [Para 8]

JUDGMENT

-The short question which arises in this petition is whether notice issued to the respondent in terms of Section 138 of the Negotiable Instrument Act was served upon him or whether it can be deemed that such notice was actually served upon him.

2. Without going into the correctness of the allegations made in the complaint according to the complainant the respondent herein had raised a loan of Rs.1.00,000/- from him and had agreed to repay the same along with interest at the rate of 18% per annum. As per the complaint the respondent had issued a cheque for Rs.1,54,000/- on 17-9-2000 in favour of the complainant in consideration of the above loan. The complainant presented this cheque through his Bank which was dishonored on 5-10-2000. Thereafter the complainant got issued a notice (Ext.C-3) to the respondent through his lawyer. This notice was issued to respondent-Ravinder Singh Chandel at his admitted address i.e. Village and P.O. Jhanduta, Tehsil Jhanduta, District Bilaspur, H.P. On the reverse of this envelop, there are three endorsements. The first endorsement is in Hindi which reads thus :

"PRAPAT KARTA NEEMAN PAR REHATA HAY"

Meaning thereby that the addressee lives on the following address and the address given is : "Ravinder Singh Chandel S/o Shri. Kartar Singh C/o. Govt. Medical College, Chandigarh (PB)." The Postman also made another endorsement to the following effect that :

"The addressee is out of station dep. five days dated 19-10-2000 to 24-10-2000"

3. It appears that the said notice was redirected and taken by the Postal Authorities to Chandigarh and returned back with the following endorsement :

"Incomplete address returned"

4. The learned trial Court had come to the conclusion that in view of the aforesaid endorsements, it cannot be said that the notice was served upon the respondent. This is one of the main reasons on which the complaint filed by the complainant under Section 138 has been dismissed.

6. Shri. Naresh Thakur learned counsel for the petitioner-complainant submitted that the complainant has made all efforts to serve the notice upon the respondent. According to him, admittedly, the notice has been sent at the correct address of the respondent. The respondent may have managed to get a report that he was at Chandigarh and thereafter the postal Authorities redirected the notice to the Government Medical College, Chandigarh (PB) but the same could not be served because of incomplete address. Mr. Thakur further submits that a presumption should be drawn that the notice has been served upon the respondent.

6. On the other hand. Mr. Rakesh Jaswal, submits that there is no material on record to show that the respondent has avoided the service of the notice or has managed a false report and, therefore, it cannot be presumed that notice was served upon the respondent and there can be no question of deemed service of notice upon the respondent.

7. The Apex Court in Raja Kumari Vs. P. Subbarama Naidu, (2004)8 SCC 774 : [2005 ALL MR (Cri) 269 (S.C.)] held as follows :

"19. Burden is on the complainant to show that the accused has managed, to get an incorrect postal endorsement made. What is the effect of it has to be considered during trial, as the statutory scheme unmistakably shows the burden is on the complainant to show the service of notice. Therefore, where material is brought to show that there was false endorsement about the non-availability of notice, the inference that is to be drawn has to be judged on the background facts of each case".

8. Similar view has been taken by the Apex Court in a number of other cases. The law on this subject now stands settled by a pronouncement made in D. Vinod Shivappa Vs. Nanda Belliappa, (2006)6 SCC 456 : [2006(4) ALL MR (S.C.) 145], wherein the Apes Court held as follows :

"9. It is not disputed that the drawer of the cheque makes himself liable for prosecution under Section 138 of the Act if he fails to make the payment within fifteen days of the receipt, of the notice given by the drawer. His failure to make the payment within the stipulated period gives rise to a cause of action to the complainant to prosecute the drawer under Section 138 of the Act.

11. The question is whether in a case of this nature, where the postal endorsement shows that the notice could not be served on account of the non-availability of the addressee, a cause of action gay still arise for prosecution of the drawer of the cheque on the basis of deemed service of notice under clause (c) of proviso to Section 138 of the act. In our view this question has to be answered by reference to the facts of each case and no rule of universal application can be laid down that in all cases where notice is not served on account of non-availability of the addressee, the Court must presume service of notice.

15. We cannot also lose sight of the fact that the drawer may by dubious means manage to get an incorrect endorsement made on the envelope that the premises has been found locked of that the addressee was not available at the time when postman went for delivery of the letter. It may be that the address is correct and even the addressee is available but a wrong endorsement is manipulated by the addressee. In such a case, if the facts are proved, it may amount to refusal of the notice. If the complainant is able to prove that the drawer of the cheque knew about the notice and deliberately evaded service and got a false endorsement made only to defeat the process of law, the Court shall presume service of notice. This, however, is a matter of evidence and proof. Thus even in a case where the notice is returned with the endorsement that the premises has always been found locked or the addressee was not available at the time of postal delivery, it will be open tot he complainant to prove at the trial by evidence that the endorsement is not correct and that the addressee, namely, the drawer of the cheque, with knowledge of the notice had deliberately avoided to receive notice. Therefore, it would be premature at the stage of issuance of process, to move the High Court for quashing of the proceeding under Section 482 of the Code of Criminal Procedure. The question as to whether the service of notice has been fraudulently refused by unscrupulous means is a question of fact to be decided on the basis of evidence. In such a case the High Court ought not to exercise its jurisdiction under Section 482 of the Code of Criminal Procedure."

9. A perusal of the aforesaid law laid down by the Apex Court makes it clear that in case the complainant wants the Court to presume service of notice upon the respondent, he must lead evidence to show that the endorsement made on the postal envelope is either false or it has been procured wrongly by the respondent or there is other sufficient material on record to show that the respondent was aware about the issuance of the notice and has managed to procure the said endorsement on the postal receipt. In the present case, there is not an iota of evidence on record to show that the postal endorsements made on the notice (Ext.C-3) are false or that they were procured by the respondent.

10. Shri. Thakur has also contended that some family member of the respondent must have given information to the postman that the respondent had gone to Chandigarh and therefore this person must have to be presumed to have told the respondent that a notice had come and the same was got redirected to Chandigarh. According to Shri. Thakur a presumption can therefore be raised that the respondent was aware about the notice. This contention is devoid of any merit. No such presumption can be raised. There is no material on record to show how the endorsement was made on the envelope. Who gave the information to the postman? Even if it is presumed that a close member of the family of the respondent gave the information to the postman then also is my opinion, no presumption of service of notice case raised. Leave aside the fact that there is no such evidence on record but even otherwise a1 best the relative would have told the respondent that a registered letter had come which he had redirected to Chandigarh. It cannot be presumed that the said person has noted down the name of the sender of the letter. In the present case when the complainant appeared in the witness box, a suggestion was put to him in cross-examination that the respondent-accused had gone to Chandigarh in connection with the treatment of has wife; the, complainant showed his ignorance about this fact but has not denied the same. There is material on record to show that the respondent had gone to Chandigarh in connection with the treatment of his wife. A perusal of the envelope (Ext.C-3) shows that it was redirected to Ravinder Singh C/o. Govt. Medical College, Chandigarh (P.B.). This was an incomplete address. The postal Authority has rightly returned the same with the report that the address is incomplete. It is apparent that even up attempt was made to serve the respondent-accused at Chandigarh, and the postal Authority returned the letter because the address was totally incomplete.

11. In view of the above discussion, I am of the considered view that no presumption of service could have been raised and the learned Judicial Magistrate has rightly rejected, this prayer of the complainant-petitioner. There is no merit in this petition which is accordingly dismissed.

Petition dismissed.