Back
Andhra Pradesh High Court
PRAKASH JEWELLERS - Appellant
Versus
A.K.JEWELLERS - RESPONDENT
Decided On: 05-15-02
The main legal point established in the judgment is that the sender of the demand notice is entitled to claim the benefit of presumption of service once the notice is dispatched through registered post or postal certificate with the correct address of the recipient written on it and proved such dispatch through original receipts. The denial of receipt by the recipient is not conclusive, and the recipient must prove that the notice was not received and that he was not responsible for the non-service.
Headnote:
Negotiable Instrument Act - Service of Demand Notice - Section 138 - 138 - 27 of General Clauses Act - Rule 19-A of Order-V Code of Civil Procedure, 1908 - The court discussed the service of demand notice under Section 138 of the Negotiable Instrument Act and the presumption of service by post under Section 27 of the General Clauses Act and Rule 19-A of Order-V Code of Civil Procedure, 1908. The court emphasized that the sender of the notice is entitled to claim the benefit of presumption of service once the notice is dispatched through registered post or postal certificate with the correct address of the recipient written on it and proved such dispatch through original receipts. The court held that the presumption of service by post is rebuttable, but the denial of receipt by the recipient is not conclusive, and the recipient must prove that the notice was not received and that he was not responsible for the non-service. The court emphasized that the purpose of the demand notice is to afford the recipient a chance to make the due payment and not to dispute or avoid the liability, and therefore, the requirement of the notice cannot be over-stretched to wash off the liability itself.
Fact of the Case:
The petitioner filed a complaint under Section 138 of the Negotiable Instrument Act alleging dishonoring of a cheque. The trial court dismissed the complaint for non-service of the demand notice on the respondent.
Finding of the Court:
The court found that the trial court had wrongly dismissed the complaint based on the issue of service of demand notice. It held that the trial court had over-stretched the issue and drawn an untenable conclusion about the non-service of the notice.
Issues: The main issue was whether the demand notice of the respondent was served on the petitioner, and whether the trial court had rightly dismissed the complaint for non-service of the notice.
Ratio Decidendi: The court emphasized that the sender of the notice is entitled to claim the benefit of presumption of service once the notice is dispatched through registered post or postal certificate with the correct address of the recipient written on it and proved such dispatch through original receipts. The court held that the presumption of service by post is rebuttable, but the denial of receipt by the recipient is not conclusive, and the recipient must prove that the notice was not received and that he was not responsible for the non-service.
Final Decision: The impugned trial court judgment was set aside, and the complaint filed by the petitioner was directed to be disposed of under the law within three months from receipt of the order.
( 1 ) THE short question that falls for determination is whether petitioner s demand notice was served on respondent and whether trial Court had wrongly or rightly dismissed his complaint u/s 138 of Negotiable Instrument Act for non-service of this notice.
( 2 ) PETITIONER filed a complaint No. 13/99 before ACMM u/s 138 of Negotiable instrument Act complaining of dishonouring of cheque No. 538722 dated 7. 8. 1996 for Rs. 1. 54 lacs executed by respondent. Side-tracking other issues, trial Court converged on the issue of service of demand notice and held that the requisite notice was served on the respondent was dismissed petitioner s complaint for this. It held :- "cw-3 in his examination in chief has stated to the following effect with respect to service aspect: "the said notice sent through Speed Post, Regd. Post and UPC. . . . . . . . . " in cross-examination, this witness stated as follows:
"i did not receive any AD card or information regarding service of notice upon Mr. Ashwani Kumar from my counsel Sh. Moitra in the form of any document including AD card. "from the above statement, it can be safely inferred that it was not the complainant who had posted the notice through speed post, regd. post as well as UPC and hence, service of notice has not been proved. It was the bounden duty of the complainant to examine either the counsel Mr. Moitra or his clerk who was the best witness to prove the service aspect. It has not been so done and so the constructive presumption in favour of the complainant regarding service having been effected upon the accused, cannot be drawn. Complainant has neither stated nor he could have stated to the effect that what was the fate of the regd. letter, speed post or UPC. Had it been proved on record that the regd. letter, speed post, UPC envelope were not received back then the presumption regarding service of notice might have been drawn in favour of the complainant. In view of the above facts, possibility of the notice not even being posted or being sent at the address other mentioned of the accused, cannot be ruled out. Another reason which goes against the complainant is that accused has disputed the service of notice. It is well settled that the presumption regarding service in case of postal articles stated to have been sent by the complainant, is a rebuttable presumption. In case, the accused disputes the service of notice, onus shifts on the complainant to examine the postal officials or the person who posted the letters. In this case, it has not been so done. "
( 3 ) PETITIONER assails the trial Court judgment/findings on the ground that demand notice of respondent was served through registered post and postal certificate, original receipts whereof were placed on record and formed Ex. AW-1/10, aw-1/11 and AW-1/12. But trial Court had overtooked and discarded all these clutching to petitioner s statement that he had not received the AD card from the office of his counsel. The adverse presumption drawn, therefore, is said to be untenable and the trial Court finding contrary to record.
( 4 ) RELIANCE in support is placed on two Supreme Court Judgments in K. Bhaskaranv. Sankaran Vaidyan Baton, 1999 VIII AD (SC) 417 and M/s. Dalmia cement (Bharat) Ltd. v. M/s Galaxy Traders and Agencies Ltd. , 2001 (1) AD (SC) 409 and a Judgment of this Court in Jain Associates v. Deepak Chaudhary and Co. , 80 (1999) DLT 664.
( 5 ) THE stand of respondent, on the other hand, is that presumption drawable on service of notice by registered post was rebuttable one and once he had denied the receipt of notice, it was for the petitioner to prove it on all force. But since he had failed to do so, trial Court had rightly dismissed his complaint for non-service of notice and its order was justified.
( 6 ) SECTION 138 of the Act makes it an offence where any cheque drawn by a person on any account maintained by him in a bank for payment of any amount to other person is returned unpaid by the bank for insuff
