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2006(1) Bankmann 70(1)
KERALA HIGH COURT
K. Hema, J
Anil Raj S.V. — Petitioner
versus
M/s. Integrated Finance Co. Ltd. — Respondent
Crl. M. C. No.9013/2002 and 9017/2002
Decided on 4.1.2005
For the Petitioner:Mr. Nagaraj Narayanan and Nair Ajay Kishnan, Advocates.
For the Respondent: Mr. M. Balagovindan, R. Jagadish Kumar and Tresa Rani George (Public Prosecutor)
IMPORTANT POINT
Notice under Section 138(b) of Negotiable Instruments Act sent by regd. post on correct address of drawer of cheque can be deemed to have been served on sendee unless he proves that it was not really served and that he was not responsible for such non-service.
Headnote:Negotiable Instruments Act, 1881—Section 138(b)—Dishonour of cheque—Demand notice returned with postal endorsement “Addressee left India”—Endorsement was true—Question whether notice could be deemed to be served upon petitioner—There could be deemed service of notice in case where notice was sent in correct address of sendee unless he proved that it was not really served and he was not responsible for such non-service—Trial Court will have to decide whether there was actual service or not —On mere production of postal acknowledgement cards and pass port alone, it could not be concluded in absence of evidence that there was no legal notice—No interference was possible under Section 482 Cr.PC on the grounds raised.
Held: The courts must therefore be cautious while dealing with such situations. While safe-guarding the interest of a complainant from a tricky accused who purposely evades notice, in my view, Supreme Court has adequately protected an innocent accused also, from a dishonest complainant. That is why the Supreme Court said in Raja Kumari’s case that a notice “can be deemed to have been served on the sendee, unless he proves that it was not really served” and that he was not responsible for such non- service.” According to me, there is a note of caution in that judgment in favour of the accused also. It the accused proves that there was no service of notice and that was not responsible for non-service, then notice cannot be deemed served. In the above circumstances, I hold that courts cannot without, application of mind, mechanically infer in every case wherein there in evidence for dispatch of notice, that notice is served. Such automatic inference, without understanding the real import of the legal position will result in serious miscarriage of justice.
Now, let me come to the facts of this case. According to the petitioner, he is a permanent resident of Vamanapuram, Kerala who is employed in U.A.E. The petitioner was in U.A.E. from 2.5.1999 onwards and he returned only on 19.10.2000. True copy of the passport is produced as Annexure A-4. Notice sent to the petitioner was returned to the sender with endorsement ‘addressee left India’. In the above circumstances, the petitioner’s case is that postal endorsement/Annexure-A3 and the passport details would be sufficient to hold that there was no notice to him as contemplated by the Act.
But the fact that notice was dispatched is not under dispute. Petitioner has also no case that notice sent to him was not in his correct residential address. But he would contend that notice under Section 138 (b) was not served on him and that non-service was due to reasons beyond his control and that he was not in any way responsible for the same. In such circumstances, in the light of the discussions already made by me in the earlier paragraphs, the trial court will have to decide whether there was actual service or not and whether petitioner was in any way responsible for non-service etc. after adducing evidence. It is only after appreciation of the relevant facts and evidence that the court can conclude whether notice can be deemed served or not. It cannot at any rate be done at the initial Stage. Learned Counsel for the first respondent also cited a decision in Fakirappa v. Shiddalingappa, 2002 Crl. L.J. 1926 Karnataka, in support of the contention that no interference can be made by the court on the service of notice, before adducing evidence.
Summing up my discussions, I hold that in a case in which notice is returned with endorsement ‘addressee left India’, on the mere production of postal acknowledgment cards and passport alone, it cannot be concluded in the absence of evidence on the relevant particulars that there was no legal notice under Section 138 (b) of N.I. Act. The trial court has to decide the relevant issue at the appropriate stage after adducing evidence in the light of what is stated in this order. It will be too premature in a case of this nature to hold at this initial stage that there was no sufficient notice under Section 138 of the N.I. Act. In the above facts and circumstances, I find that no interference is possible under Section 482 Cr. P.C. on the grounds raised. (Para 17 to 20)
Result: Petition dismissed.
Hon’ble K. Hema, J.—Notices were sent to the petitioner in both the cases at hand, under Section 138(b) of Negotiable Instruments Act. Those were returned with the postal endorsement, “Addressee left India”. Those endorsements are true. He had in fact left India. Admittedly therefore, those were not served on the petitioner, though sent in correct address. Can in such circumstances, those notices be deemed to be served on the petitioner? Can the proceedings initiated against the petitioner under Section 138 of Negotiable Instruments Act be quashed? These are the main questions arising in both the cases before me.
2. The petitioner is the accused in both the above cases. Same questions arise in these cases. Hence these cases are disposed of by this common Order. The first respondent Crl. M.C. No. 9013/2002 and Crl. M.C. 9017 of 2002 filed complaints against the petitioner, before the Judicial First Class Magistrate Court-I. Thiruvananthapuram under Section 138 of the Negotiable Instruments Act, after complying with the legal formalities under the Negotiable Instruments Act. The court took cognizance of offence under Section 138 of the Negotiable Instruments Act and those cases were taken on file as C.C. 105/2001 and C.C/ 119/2001.
3. Admittedly, notices issued to the petitioner under Section 138(b) of the N.I. Act were returned in both the cases with the endorsement ‘addressee left India’. Copies of postal endorsements are also produced along with the complaint. The accused produced in these proceedings, copy of passport showing that he was not available in India during relevant time. Learned counsel appearing for the petitioner therefore contended that there is clear proof for the fact that there was no service of notice and also that the petitioner was abroad at the relevant time. Therefore, it is contended that there is no legal notices in the above cases and hence chances of a conviction are bleak. It is also argued that before issuance of summons, the lower court .ought to have considered all these aspects and see whether there are materials on record to disclose ingredients of offence under Section 138 of the N.I. Act, as held in the decision reported in 2001 CCR 260 (SC).The petitioner on these grounds seeks to quash the proceedings initiated by the lower Court against him on the basis of the above complaints to prevent abuse of process of Court.
4. Learned Counsel appearing for the complainant/first respondent however maintained the strong stand that the proceedings cannot be quash on any of the grounds stated. It was argued that as per settled position of law, it is sufficient if the notice is issued in the correct address of the drawer of .the cheque and notice has to be deemed to be served on the sendee whether it is actually served or not. As per postal records produced along with the complaints, it is proved that notices were sent to the petitioner in correct address and the petitioner himself has no case that the address shown was wrong. Therefore, in the light of the decision reported in Mohammed Ashraf v. Sharafuddin1, it was argued that notice can be deemed to be served on the petitioner and he cannot any longer contend that there is no valid notice under the Act. It was also urged whether the notice is actually served or not and whether the petitioner was abroad etc. do not germane for consideration in this case, in the light of the dictum laid down in the above decision.
5. The relevant portion from the above decision in Mohammed Ashraf v. Sharafuddin, (Supra), can be extracted as follows:
“It is not the law that notice under S. 138 of the N.I. Act must be served on the indictee. Law only obliges the payee to demand payment “by giving a notice”. It is by not trite that a notice issued in the correct address of the drawer of the cheque by pre-paid post whether served or not is sufficient notice of the purpose of S. 138 of the N.I. Act.”
6. It is true that as held on the above decision, notice issued und
