A notice sent to the correct address is presumed served unless the accused proves otherwise; failure to present a defense supports conviction under Section 138 of the NI Act.

ORAL ORDER

Heard learned counsel for the petitioner and respondent is served and unrepresented, inspite of service of notice.

2. This revision petition is filed challenging the order of conviction and sentence passed in C.C.No.782/2015 for the offence punishable under Section 138 of N.I. Act and also confirmation order passed by the First Appellate Court in Crl.A.No.106/2019.

3. The factual matrix of the case of the complainant before the Trial Court is that complainant and the accused are well known to each other. Considering the said acquaintance, the accused approached the complainant for financial assistance and borrowed a sum of Rs.2,00,000/- as hand loan for his business purpose. The accused in repayment of the borrowed amount, issued a Cheque dated 04.05.2015 and though he had promised to honour the Cheque, when the same was presented, it was dishonoured with an endorsement ‘funds insufficient’. Immediately, she had sent legal notice and legal notice returned with an endorsement ‘left without instruction- returned to sender’. Thereafter, the complainant filed the complaint and the Trial Court taken cognizance and secured the accused and on securing the accused, he did not plead guilty.

4. The complainant examined herself as P.W.1 and got marked the documents as Exs.P1 to P25. On the other hand, the accused did not choose to lead any defence evidence, but he was examined under Section 313 Cr.P.C. The Trial Court having considered the material on record, particularly the evidence of P.W.1, since P.W.1 was cross-examined with regard to the fact that address is not correct, nothing is elicited from the mouth of P.W.1. The Trial Court also taken note of Ex.P5- returned postal envelope, wherein endorsement is made that ‘left without instruction, returned to sender’. The Trial Court also in paragraph No.15, taken note of factual aspects and also answer elicited from the mouth of P.W.1 and also comes to the conclusion in paragraph No.16 that in 313 statement, accused has not stated anything about his correct address and at the time of issuance of demand notice, where he actually resides. Hence, the Trial Court comes to the conclusion that though the accused took time to lead defence evidence, inspite of sufficient opportunity, he did not choose to adduce oral or documentary evidence to rebut the evidence of P.W.1-complainant. The Trial Court also taken note of the fact that very endorsement goes to show that the accused was residing in the said address for some time. In view of Section 27 of the General Clause Act, 1897 and Section 114 of Indian Evidence Act which raises a presumption that the demand notice has reached the destination, unless the contrary is proved by the accused. On perusal of testimony of P.W.1, wherein the learned counsel for the accused has not made any suggestion where the accused actually resides and from what date he has been residing and noting is put to the witness P.W.1.

5. The Trial Court also taken note of the judgment of the Apex Court in INDO AUTOMOBILES VS. JAI DURGA ENTERPRISES AND OTHERS reported in (2008) 8 SCC 529, wherein the Apex Court has observed that once notice has been sent by registered post with acknowledgement due to a correct address, it must be presumed that the service has been made effective and also considering the principles laid down in the judgment of the Apex Court, the Trial Court comes to the conclusion that accused has not properly explained that at the time of issuance of demand notice where he actually resides at Bangalore. It is settled law that the presumptions are rebuttal in nature and it is for the accused to rebut the presumption by placing direct or circumstantial evidence. But, he has not done the same. The Trial Court considering the principles laid down in the judgment of the Apex Court and evidence on record i.e., P.W.1, taken note of the fact that nothing is suggested to him that he was residing at the pla