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KANWALJIT SINGH AHLUWALIA
Akash Bhatiya – Appellant
Versus
Rajeev Sharma – Respondent
Key Points: - The payee dispatching the notice by registered post with correct address activates the presumption applicable under the General Clauses Act and satisfies proviso to Section 138, making the cause of action arise on expiry of the period for payment by the drawer. (!) - The notice need not include every possible detail beyond basic facts regarding the mode and manner of issuance; the court can draw presumptions under Section 27 GC Act or Section 114 Evidence Act when notice is properly served by registered post. (!) - The drawer can rebut the presumption by showing lack of knowledge of the notice or incorrect address or non-tendering of the notice, but the object is to avoid hardship to an honest drawer. (!) - If the trial court does not consider a controlling Supreme Court judgment relevant to notice service, it constitutes an error, and the impugned judgment should be set aside and remanded for fresh judgment taking that judgment into account. (!) (!) - The requirement of giving notice before filing a complaint under Section 138 is a statutory departure from general Criminal Law rules; non-receipt does not automatically invalidate service if statutory presumptions apply and the drawer fails to respond within 15 days of summons. (!) - The case was remitted to the trial court to pass a fresh judgment considering the controlling Supreme Court judgment and to do so within three months, with directions for parties to appear. (!) (!)
Mr. Kanwaljit Singh Ahluwalia, J.
1. Present appeal has been filed to assail the impugned judgment dated 11.3.2008 rendered by the Court of Additional Chief Judicial Magistrate No.2, Jaipur City, Jaipur.
2. Briefly stated, in a complaint filed, Akash Bhatia had stated that he is engaged in sale of precious and semi-precious stones and in the course of business transactions, sale of stones was made to accused-respondent Rajeev Sharma and he had issued a cheque amounting to Rs. 25,000/- and the said cheque when presented, had bounced.
3. The trial Judge acquitted the accused-respondent on the ground that the complainant has failed to prove delivery of statutory notice upon the accused-respondent.
4. Learned counsel for the complainant-appellant has raised solitary argument to contend that the trial Judge committed a grave error by not noticing the judgment rendered by the Supreme Court in C.C. Alavi Haji v. Palapetty Muhammed & Anr. [(2007) 6 SCC 555]. Learned counsel has drawn attention of this court to Paras-10, 15 and 17 of the judgment rendered in the case of C.C. Alavi Haji's (supra). Paras-10, 15 and 17 of the said judgment reads as under:-
"10. It is, thus, trite to say that
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