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2004(1) Bankmann 158 (A.P.)
ANDHRA PRADESH HIGH COURT
K.C. Bhanu, J.
Shashi Finance
Corporation — Appellant
versus
Super Shine Abrasives (P) Ltd., Hyderabad and others — Respondents.
Crl. A. No. 48 of 2000
Decided on 22.8.2003
(B)Negotiable Instruments Act, 1881—Section 138(d)—General Clauses Act, 1897—Section 27—Dishonour of cheque—Notice—Notice sent on different address—Presumption of service of notice cannot be drawn—Trial Court rightly held that there was no construction service of notice—Complaint dismissed.
Held: As seen from the complaint, the accused were residing presently at Door No. 12-1-331/149 (MPL No. 529), Dattatraya Colony, Asifnagar-South, Hyderabad-500028. But as seen from Exhibits P-12 and P-13, notices were sent to the address bearing H.No. 3-104, Divya Shanti Apartments, Ameerpet, Hyderabad-500016. Hence, on the face of the record it is clear that the complainant had not sent the notices to the correct address of the accused. Therefore, presumption under Section 27 of the General Clauses Act cannot be drawn. The lower Court after considering the entire evidence on record rightly held that there was no constructive service of legal notice on the accused as contemplated under Section 138(d) of the Act. (Para 8)
(C)General Clauses Act, 1897—Section 27—Negotiable Instruments Act, 1881—Section 138(d)—Dishonour of cheque—Notice—Deemed service—Return of cover sent to a wrong address cannot be said to be a deemed service.
Held: If the accused refused to receive the same, then it is deemed service of notice. That is entirely a different aspect. The return of a cover by registered post sent to a wrong address cannot be said to be a deemed service. Therefore, the lower Court rightly held that there was no constructive service of legal notice on the accused as contemplated under Section 138(d) of the Act. (Para 8)
(D)Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque—Complaint filed by power of attorney—Attorney neither a payee nor a holder of cheque in due course—Complaint not maintainable and liable to be dismissed. (decision in S.P. Sampathy v. Manju Gupta, 2002(1) ALT (Crl.) 497 (DB) (A.P.) relied) (Para 9)
K.C. Bhanu, J.—This criminal appeal is directed against the Judgment of acquittal dated 29.10.1999 in C.C. No. 149 of 1998 on the file of the II Metropolitan Magistrate, Hyderabad.
2. Shashi Finance Corporation represented by its General Power of Attorney filed a complaint against the accused under Section 138 of Negotiable Instruments Act, hereinafter referred to as ‘the Act’, alleging that the accused borrowed a sum of Rs. 50,000/- for their business financial necessities and against which they issued an account payee cheque dated 30.7.1997 drawn on State Bank of Hyderabad, Shapurnagar Branch, towards repayment of the said borrowing. When the cheque was presented to the bank, it was returned for insufficient funds. Therefore, the complainant got issued legal notice dated 12.2.1998 to the accused by registered post and also under certificate of posting. But the accused managed to return the notice sent. Therefore, it is deemed service of notice. When the accused failed to pay the amount, the present complaint was lodged. On behalf of the complainant. P.Ws. 1 to 3 were examined and Exhibits P-1 to P-14 were marked. The lower Court after considering the material on record and on hearing both the Counsel came to the conclusion that there was no service of notice as contemplated under Section 138 of the Act and that the complaint as such was not maintainable in law and, therefore, acquitted the accused. Aggrieved by the same, the present appeal is filed by the complainant questioning its legality and correctness.
3. In spite of giving several adjourn-ments, there is no representation on behalf of the appellant. Heard the learned Counsel for the respondents. Perused the entire evidence on record.
4. It is the case of the complainant that the accused borrowed an amount of Rs. 50,000/- on 1.5.1997 and executed Ex. P-1 receipt on the same day. The accused issued Ex. P-2 cheque for the said amount. It was presented in the Union Bank of India. But it was returned for insufficient funds. Ex. P-4 is the returned memo. Ex. P-5 is the debit voucher. Thereupon, P.W.1 got issued a legal notice dated 12.2.1998. Ex. P-6 is the office copy of the said legal notice. Ex. P-7 is the certificate of posting. Exs. P-8 to P-10 are the postal receipts of Ex. P-6.
5. To constitute an offence under Section 138 of the Act, the following three conditions have to be satisfied :
(a)the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b)the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c)the drawer of such cheque fails to make the payment of the said amount, of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice.
6. Section 139 of the Act prescribes that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.
7. From the evidence it is established that A-2 issued Ex. P-2 cheque on behalf of A-1 for the discharge of legally enforceable debt. The important aspect under Section 138(d) of the Act is that notice has to be served on the accused demanding him to pay the amount due under the Act. Unless it is served on the accused, he has not committed any offence. On a perusal of Section 27 of the General Clauses Act, 1897 it is clear that to draw presumption of deemed service, it must be proved that the notice has been effected by registered post to be served on the respondent properly. Therefore, by virtue of provisions of Section 27 of the General Clau
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