Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates:
Counsel for the Parties:
For the Petitioner:Shri R.K.Sharma, Advocate
For the Respondent:Shri Ashish Dwivedi, Advocate

IMPORTANT POINT
Deliberate evasion of receipt of registered notice would amount to constructive service of notice.

Headnote:Negotiable Instruments Act, 1881 — Section 118 (a), 138 & 139 — Criminal Procedure Code, 1973 — Section 482 — Dishonour of cheque — Notice — Returned with endorsement that “Addressee left place” — But ultimately when notice of private compliant issued by trial court — Came back with different endorsement that “petitioner went outside” — When bailable warrant issued petitioner appeared before court — HELD — Courts-below not committed illegality to understand purport of valid notice as contemplated under S. 138(b) of the Act.
       Held: After taking into consideration the facts of the case and on perusal of the registered demand notice, it is clear that notice was returned with an endorsement that “Addressee left the place” in first turn but ultimately when notice of private compliant was issued by the trial court, it came back with a different endorsement that “petitioner went outside”. When bailable warrant was issued, petitioner appeared before the court. In para 5 of the complaint, it was stated that the accused deliberately evaded receipt of registered demand notice. It is therefore only a deliberate avoidance of the notice on the part of the accused to escape from the liability which cannot be entertained. So, the things are very clear and the courts-below have not committed any illegality to understand the purport of a valid notice as contemplated under Section 138(b) of the Act.
       Negotiable Instruments Act, 1881 — Section 118 (a), 138 & 139 — Criminal Procedure Code, 1973 — Section 482 — Dishonour of cheque — Notice — HELD — At preliminary stage entire proceedings of private complaint cannot be quashed — Without giving opportunity of adducing evidence to both sides — Petitioner left with liberty to raise objection regarding non-receipt of notice — Or in regard to correct address or otherwise before trial court at appropriate stage — Trial court in turn directed to consider said objection — After giving opportunity of leading evidence and hearing to both sides — At time of deciding matter finally on merits.
       Held: From aforesaid discussions, the issuance of demand notice as contemplated under Section 138(b) of the Act prima facie stands proved. Hence, no ground is available to entertain the present petition. Apart that at this preliminary stage, the entire proceedings of the private complaint cannot be quashed without giving opportunity of adducing the evidence to both the sides. The petitioner is therefore left with liberty to raise objection regarding non-receipt of notice or in regard to correct address or otherwise before the trial court at appropriate stage and the trial court in turn is directed to consider said objection, after giving opportunity of leading evidence and hearing to both the sides, at the time of deciding the matter finally on merits.
       Negotiable Instruments Act, 1881 — Section 138 (b) — Notice — Whenever statute uses words “served” or “give” or “sent” — Unless different intention appears — Notice would be presumed to be served “properly” — If sent on proper/correct address by registered post.
       Held: Section 138 (b) NI Act is unambiguous in requiring a demand in writing to be made by the payee by “giving a notice in writing to the drawer of the cheque within 30 days of receipt of intimation that the cheque has dishonored.” In terms of the said provision whenever a statute uses the words “served” or “give” or “sent”, unless a different intention appears, notice would be presumed to be served “properly”, if sent on proper/correct address by registered post.
       Result: Petition disposed off

Vijay Kumar Gupta VS Pankaj Sharma