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2006 Supreme(Bom) 1896
(HIMACHAL PRADESH HIGH COURT)
DEEPAK GUPTA, J.
Ramesh Chand Appellant
versus
Ravinder Singh Chandel Respondent
CLM.P.(M) No.513 of 2006
Decided on :23rd November, 2006.
Advocate Appeared
N. K. THAKUR, for Complainant.
RAKESH JASWAL, for Respondent.
The burden of proof is on the complainant to show the service of notice under Section 138 of the Negotiable Instrument Act, and the court cannot presume service without sufficient evidence.
Headnote:
Section 138 - Negotiable Instrument Act - [138] - [138] - The court discussed the service of notice under Section 138 of the Negotiable Instrument Act and the burden of proof on the complainant to show the service of notice. The court referred to the judgments in Raja Kumari Vs. P. Subbarama Naidu and D. Vinod Shivappa Vs. Nanda Belliappa to establish the legal principles regarding the presumption of service of notice and the burden of proof on the complainant.
Fact of the Case:
The complainant alleged that the respondent had raised a loan and issued a cheque which was dishonored. The complainant sent a notice to the respondent, but the trial court dismissed the complaint under Section 138 due to the failure of notice service.
Finding of the Court:
The court found that there was no evidence to show that the postal endorsements made on the notice were false or procured by the respondent. It also rejected the presumption of service based on the redirection of the notice to an incomplete address.
Issues: The main issue was whether the notice under Section 138 of the Negotiable Instrument Act was served upon the respondent.
Ratio Decidendi: The burden of proof is on the complainant to show the service of notice, and the court cannot presume service without sufficient evidence. The court also emphasized the need for evidence to prove that the postal endorsements were false or procured wrongly by the respondent.
Final Decision: The court dismissed the petition, affirming the trial court's decision to reject the presumption of service of notice.
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, Charidigarh (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
