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2007 Supreme(SC) 1668
SUPREME COURT OF INDIA
Sinha S.B. and Katju Markandey, JJ.
C.C Alavi Haji - Petitioner
Versus
Palapetty Muhammed - Respondent
Petitioner(s) for Special Leave to Appeal (Cri.) No. 3910 of 2006,
Decided On : 14-02-2007
For the Petitioner:- K. Rajeev, Advocate.
For the Respondent:- A. Raghunath, G. Prakash, Advocate.
Necessary averments must be made in the complaint petition to rebut the presumption raised under Section 114 of the Evidence Act.
Headnote:
Service of Notice - Negotiable Instruments Act - Section 138 - Proviso (b) - Section 114 of the Evidence Act
Fact of the Case:
The court considered whether service of notice in terms of the Proviso (b) appended to Section 138 of the Negotiable Instruments Act, 1881 is mandatory, and if the court could take cognizance of the offence under Section 138 on the basis of the averments made in the complaint petition.
Finding of the Court:
The court found that the Division Bench had not considered the presumption arising out of an official act as provided under Section 114 of the Evidence Act, and that necessary averments must be made in the complaint petition to rebut such a presumption.
Issues: The issues involved were whether service of notice is mandatory under the Proviso (b) of Section 138, and whether necessary averments must be made in the complaint petition to rebut the presumption raised under Section 114 of the Evidence Act.
Ratio Decidendi: The court held that necessary averments must be made in the complaint petition to rebut the presumption raised under Section 114 of the Evidence Act, and that the matter should be considered by a Larger Bench.
Final Decision: The matter was directed to be placed before the Hon'ble Chief Justice of India for appropriate orders.
JUDGMENT :
Mr. Katju Markandey, J. :- One of the questions which arises for consideration is as to whether service of notice in terms of the Proviso (b) appended to Section 138 of the Negotiable Instruments Act, 1881 is mandatory. It is not disputed that service of notice is an ingredient of the offence. In this case, the complainant-respondent accepted the fact that the notice could not be served upon the petitioner and it was returned unnerved with an endorsement of the postal peon "Out of Station". The complainant in the complaint petition does not allege that the service of notice was deliberately avoided by the petitioner or the postal endorsement of the postal peon on the envelope was wrongly obtained. The question which arises for consideration is as to whether in a situation of this nature, the Court could take cognizance of the offence under Section 138 of the Negotiable Instruments Act on the basis of the averments made in the complaint petition.
2. The learned Counsel appearing on behalf of the respondent has drawn our attention to a decision of this Court's in (D. Vinod Shivappa v. Nanda Belliappa)', 2006(2) Bom.C.R.(Cri.) (S.C.)31 : (2006)6 S.C.C. 456, wherein a Division Bench of this Court held:
"If a notice is issued and served upon the drawer of the cheque, no controversy arises. Similarly, if the notice is refused by the addressee, it may be presumed to have been served. This is also not disputed. This leaves us with the third situation where the notice could not be served on the addressee for one or the other reason, such as his non-availability at the time of delivery, or premises remaining locked on account of his having gone elsewhere, etc. etc. If in a each such case the law is understood to mean that there has been no service of notice, it would completely defeat the very purpose of the Act. It would then be very easy for an unscrupulous and dishonest drawer of a cheque to make himself scarce for some time after issuing the cheque so that the requisite statutory notice can never be served upon him and consequently he can never be prosecuted. There is good authority to support the proposition that once the complainant, the payee of the cheque, issues notice to the drawer of the cheque, the cause of action to file a complaint arises on the expiry of the period prescribed for payment by the drawer of the cheque. If he does not file a complaint within one month of the date on which the cause of action arises under clause of the proviso to Section 138 of the Act, his complaint gets barred by time. Thus, a person who can dodge the postman for about a month or two, or a person who can get a fake endorsement made regarding his non- availability can successfully avoid his prosecution because the payee is bound to issue notice to him within a period of 30 days from the date of receipt of information from the Bank regarding the return of the cheque as unpaid. He is, therefore, bound to issue the legal notice which may be returned with an endorsement that the addressee is not available on the given address.
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 or 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, know 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 t
