The court ruled that sending notice to a correct address from an official ID meets the compliance requirement under Section 138(b), emphasizing the presumption of service for registered post communications.

JUDGMENT :

S. M. MODAK, J.

1. Heard learned Advocate for the Petitioner-Complainant and learned Advocate for the Accused-Respondent No. 1.

2. The only issue arisen in this petition is “whether it can be said that the Complainant has complied with the provisions of Section 138 (b) of the Negotiable Instruments Act relating to service of notice”. Though the notice dated 05.06.2018 was sent, it returned back with a remark ‘ left address’. A copy of the envelope is on page no. 29. In fact the issue is no more res integra as it is already decided in case of C.C. Alvai Haji Vs. Palapetty Muhammed and Anr. , 2008 (1) Mh. L.J.. Still Learned Additional Session Judge, Kolhapur falls pray to the arguments advanced on behalf of accused and set aside the process on 25.04.2023.

Case put up by parties

3. According to the Complainant, the notice was sent on address which he found from the Aadhar card of the accused. A copy of the Aadhar card is on page no. 28. He has further pleaded in the complaint, in para no. 5 that in fact the accused is residing at the same address, but deliberately he has not accepted the notice .

4. Whereas it is the contention of the accused that “he has already left that address and the address is incorrect and hence the provision of Section 138 (b) of the Negotiable Instruments Act are not complied with”. The learned Advocate for the Respondent-accused relied upon the phrase ‘receipt of the notice’ used in Section 138 (c) of the Negotiable Instruments Act.

5. So the issue is “which version to be accepted at pre trial stage.” The accused took a chance before Revisional Court. He was successful in convincing the Court that there was no proper service; that is why the Court of the Additional Sessions Judge, Kolhapur has set aside the process and the complaint was dismissed. The correctness of the order dated 25.04.2023 is challenged by way of this petition.

Submissions

6. The learned Advocate Shri Patil for the Petitioner relied upon the observations in following judgments :--

(a) case of C.C. Alvai Haji Vs. Palapetty Muhammed and Anr. , 2008 (1) Mh. L.J.

(b) case of M/s. Indo Automobiles Vs. M/s Jai Durga Enterprises and Ors. , AIR 2009 SC 386

According to learned Advocate Mr. Patil, the revisional Court has not correctly appreciated the ratio laid down in above said judgments.

7. Whereas learned Advocate for the Respondent No. 1 supported the order and according to him, when the Complainant claims that both are friends, he ought to be aware about correct address of the accused. He relied upon the observations in case of Shri Mangesh Satish Vairat and Ors. Vs. Smt. Sangita Tanaji Nanavare and Anr. passed by this Court in First Appeal No. 234 of 2020 dated 06.07.2023. It is no doubt true in case of Mangesh Vairat (Supra), learned Single Judge has referred to the observation made by the Hon’ble Supreme Court in case of C.C. Alvai Haji (supra) in para no. 4. In that matter, the issue was about service of the summons. The learned Judge has not accepted the service as proper (envelope returned back with remark ‘left address’) and given necessary directions. These observations will not be helpful to the Respondent for two reasons:-

(i) The specific provisions of the Section 138 of the Negotiable Instruments Act were not involved and

(ii) This was direction given at the preliminary stage at the time of the service of the issuance of the summons. It cannot be said ‘any law is laid down’.

Observations about C.C. Alvai Haji

8. Now the issue is whether the re