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D. K. JAIN, K. G. BALAKRISHNAN, R. V. RAVEENDRAN
C. C. Alavi Haji – Appellant
Versus
Palapetty Muhammed – Respondent
Question 1? What is the effect of sending notice by registered post to the correct address under Clause (b) of the proviso to Section 138 of the Negotiable Instruments Act on the mandatory requirement for service of notice? Question 2? What are the evidentiary presumptions (Sections 27 of the General Clauses Act and Section 114 of the Evidence Act) applicable to service of notice under Section 138, and when can they be invoked without averments in the complaint? Question 3? When can the complaint under Section 138 be maintained despite lack of explicit averments that the addressee deliberately avoided notice or that service was evaded?
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JUDGMENT
D.K. JAIN, J.—
1.Leave granted.
2.The matter has been placed before the three Judge Bench in view of a Reference made by a two-Judge Bench of this Court, pertaining to the question of service of notice in terms of Clause (b) of proviso to Section 138 of the Negotiable Instruments Act, 1881 (in short The Act). Observing that while rendering the decision in D.Vinod Shivappa Vs. Nanda Belliappa,1 [(2006) 6 SCC 456] this Court has not taken into consideration the presumption in respect of an official act as provided under Section 114 of the Indian Evidence Act, 1872, the following question has been referred for consideration of the larger Bench:
“Whether in absence of any averments in the complaint to the effect that the accused had a role to lay in the matter of non-receipt of legal notice; or that the accused deliberately avoided service of notice, the same could have been entertained keeping in view the decision of this Court in Vinod Shivappas case (supra)?”
3.As it hardly needs emphasis that necessary averments in regard to the mode and the manner of compliance with the mandatory requirements of Section 138 of the Act are required to be made in the complaint, from the format
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