The admissibility of notice sent through UPC and the presumption of service under Section 138 of the Negotiable Instruments Act.

JUDGMENT:- The respondent herein had filed a complaint under Section 138 of the Negotiable Instruments Act. According to the averments made in this complaint he had advanced a loan of Rs.4,75,000/- to the accused (petitioner herein). For the repayment of the said loan, petitioner acting on behalf of petitioner company had issued a cheque No.786356 dated 31.7.1998 drawn on the Bank of Raj asthan Ltd., Panchsheel Park, New Delhi. This cheque was presented by the respondent for encashment.

"However, the same was returned back with memo dated 15.1.1999 of the Bank giving reasons "insufficient funds". Thereafter, notice by UPC was sent by the respondent to the petitioners and according to the respondent since payment was not made even thereafter, the aforesaid complaint was filed. As there is dispute about the service of notice, paras 6 and 7 of the complaint, touching this aspect, are reproduced below:

"6. That thereafter the complainant through his Counsel sent a legal notice dated 23.1.1999 through UPC to the accused persons calling upon them to pay the loan amount of the said cheque of Rs.4,75,000/ - (Rupees four lakhs and seventy-five thousand only) within fifteen days of the receipt of the notice.

7. That the accused persons failed to pay the loan amount within fifteen days of the receipt of legal notice."

2. Pre-summoning evidence was recorded and thereafter summoning orders dated 26.4.2000 have been issued by the learned MM observing that prima facie there appears to be sufficient material on record to summon the accused persons for having committed an offence punishable under Section 138 of the N.I. Act. Against these orders, present petition is filed. As indicated above, the case of the petitioners is that petitioners were never served with any such legal notice dated 23.1.1999 purported to have been sent by the respondent through UPC. It is the submission of learned Counsel for the petitioners that notice was allegedly by UPC and in para 6 it is only stated that the notice was sent and there is no averment that this notice was ever received by the petitioners. He further submits that the petitioners had filed an application for recall of the summoning order and reply to this application was filed by the respondent and in the said reply the respondent had stated that there is a presumption that the notice sent under UPC was served on the accused persons i.e. the petitioners. His submission is that from these averments also it would be clear that respondent is accepting that notice is not served upon the petitioners but is only drawing presumption of service. He contended that such a presumption cannot be drawn as, as per the provision of Section 27 of the General Clauses Act it is only when the notice is sent by Registered Post and not by UPC with such a presumption drawn.

In support of this-he relied upon judgment of Supreme Court in the case of Shiv Kumar and Others Vs. State of Haryana and Others, (1994)4 SCC 445. He, therefore, submitted that since it is not established that there was any service of notice even as per the complaint, summoning order could not have been issued as in the absence thereof no cause of action had arisen as held by Karnataka High Court in the case of Ramanna Vs. T. Jayaprakash, (1998) Vol.92 Company Cases 517. Learned Counsel for the respondent on the other hand submitted that Section 138 of the N.I. Act does not prescribe any specific mode of service.

Therefore, service by UPC is also proper mode of service. He further submits that once confirmation is made in the complaint, the document is placed on record showing that notice was sent by UPC, presumption under Section 114 of the Evidence Act would arise in favour of the sender of the notice. He also submits that ultimately the question as to whether notice was received by the petitioner or not is a question of fact which has to be determined on the basis of evidence before the Trial Court and this Court should not exercise the discretionary juris

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