The burden of proof lies on the complainant to establish intentional avoidance of claiming the registered notice by the accused, and positive evidence is required to raise the presumption of valid service under section 27 of General Clauses Act, 1897.

JUDGMENT :

The petitioner is the complainant. He is aggrieved of dismissal of the complaint case bearing no. C/1 138 of 2012 which was filed under section 138 of Negotiable Instruments Act.

2. The appeal preferred by the complainant against the judgment in C/1 138 of 2012 corresponding to T.R. No. 153 of 2013 was dismissed vide judgment dated 14.01.2016.

3. The complainant has set up a case that the accused approached him In August, 2011 for a friendly loan of Rs.1,40,000/ - with a promise to repay the same by December, 2011. The accused issued post-dated cheque bearing no. 401938 dated 15.12.2011 drawn on Punjab National Bank for Rs.1,40,000/ - in his favour, in acknowledgment of the loan amount received by him. The said cheque on presentation for encashment was dishonoured with the remarks "due to insufficiency of fund". A legal notice was sent to the accused through registered post with acknowledgment on his residential address however in spite of knowledge about the demand notice the accused refused to receive the notice and the legal notice was returned with remark "not claimed". By an order dated 07.02.2012, cognizance of the offence under section 138 of Negotiable Instruments Act was taken. The substance of accusations were explained to the accused and his statement under section 313 of Code of Criminal Procedure was recorded on 20.08.2013.

4. The learned trial Judge has held that it was not proved that the accused deliberately evaded service of notice or a false endorsement was put on the envelop in connivance with the postal peon. The learned trial Judge has held as under:

In the above facts and circumstances I find that the complainant has not been able to prove that the notice was duly served upon the accused. I further find no such notice could be presumed to be given to the accused in view of the endorsement of the postal peon that the accused not claimed. In absence of proving the fact by the postal peon that the accused knew about the issuance of notice and he deliberately evaded the service of notice only to defeat the process of law, no notice could be presumed to be given to the accused.

9. Considering the above facts and circumstances of the case and material available on the record, the complainant has failed to prove his case beyond reasonable doubt and also failed to comply the provision of Section 138 of-NI Act. Hence the accused is hereby acquitted from the charges leveled against him. He is on bail. His bail bond is canceled but discharged from the liabilities of bail bond.”

Opposite party no.2 was. accordingly acquitted.

6. The Appellate Court has dismissed Criminal Appeal

No.1 of 2014 holding as under:

“14. In the case of Ram Prasad Sahu Vs. Pandey Giri [2009] 2 JLJR 43 the Hon'ble Jharkhand High Court has held that in absence of signature of any of the witness before whom the accused person refused to take the notice or any signature made by -the accused himself on the said letter it was not possible to hold that the said letter has actually been refused by the accused and also as because the complainant has not examined the postal peon, the judgment of acquittal of the trial court was upheld and the appeal against the acquittal was dismissed.

15. From the above laws as laid down by the Hon'ble Apex Court as well as Hon'ble Jharkhand High Court it is evident that the burden to prove that the accused has intentionally avoided to claim the registered notice was upon the complainant and he could have discharged this onus at least by proving the endorsement on the envelope in accordance with law, ie, by examining the postal peon who was the author of the endorsement. Therefore, it has rightly been held by the ld. Trial court that in absence of examination of postal peon it cannot be presumed that the notice has been validly served upon the accused.”

Cr. Rev. No. 186 of 2016

7. Mr. Girish Mohan Singh, the learned counsel for the petitioner would contend that the postal remark "not claimed" is sufficient to raise