TaxTMI 
TaxTMI 
1998 (8) TMI 624
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....cused. The complainant presented the cheque for collection on 10-1-1996 and the said cheque, which was issued towards part satisfaction of the debt was dis-honoured by the Bank with an endorsement "exceeds arrangement". The complainant was intimated about the same on 22-1-1996. The complainant thereafter got issued a statutory notice dated 24-1-1996 to the accused. It is further alleged that A-1 received the notice on 29-1-1997 and A-7 refused to receive the said notice. The accused, however, issued a fresh cheque on 30-9-1996 for the said sum of Rs. 10.00 lakhs. The complainant presented the said cheque for collection on 9-12-1996 and the same was also dis-honoured with an endorsement "payment stopped by the drawer". Again the complainant got issued the statutory notice dated 14-12-1996. The time and date of offence, according to the complainant, are as follows: Date of cheque: 30-09-1996 Date of presentation: 09-12-1996 Date of Return of che....
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....se of rejecting the same. Not only the company, but every person, who at the time the offence was committed, was incharge of, and was responsible to the company for the conduct of the business of the company shall also be deemed to be guilty of the offence and shall be liable to be proceeded against and punished under Section 138 of the Negotiable Instruments Act. There is no dispute whatsoever that on the date of the alleged offence, the first petitioner was the Managing Director of the Company. Therefore, he cannot contend that he is not liable for the alleged offence committed by the Company. 7. The only point strenuously urged by the learned Counsel for the petitioners is about the requirement of service of notice. The learned Counsel would urge that the complaint filed by the first respondent does not satisfy the requirement of law. It is urged that the complaint, it self, does not disclose that any notice, as such, was served upon the accused. Service of notice is a mandatory requirement. The service of notice upon the company and the persons responsible for its management is the mandatory requirement. The learned Counsel for the first respondent would urge that notices wa....
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....not found in his house by the post-man for seven continuous days, there cannot be a presumption of the service of the notice.'' 10. The said decision in clear terms supports the case of the complainant and not of the accused. Here is a case, where it is clearly alleged that the notice was sent under registered post and the complainant did not receive the returned postal cover or the acknowledgment from the accused. According to Sri V.L.N.G.K. Murthy, learned Counsel for R-1, the presumption under Section 27 of the General Clauses Act is available. The further observation of the Court that service of notice is a mandatory requirement would also not help the case of the petitioners/accused. Once it is established that notice was sent under Registered post Acknowledgment due and if neither the postal cover nor the Acknowledgment is returned, the presumption available is that the addressee had received the notice. It would be a case of service of notice. In such cases requirement of Section 138 of the Negotiable Instruments Act shall be deemed to have been complied with. 11. This Court in V. Satyanarayana v. A.P. Travel and Tourism Department Ltd., 1997 (1) ALD (Crl.) 706....
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....use locked' and 'shop closed' then it must be deemed that the notices have been served on the respondents. Therefore, the crucial question is whether the notices were sent to the correct address of the petitioner-accused and whether the petitioner-accused managed the postal authorities to return the notice with some false endorsements are questions of fact which can be decided during the trial of the case only. Complaint under Sections 138 of the Negotiable Instruments Act cannot be quashed or dismissed merely because the notice was not served on the accused or drawer without enquiring into the circumstances leading to the non-service of notice." 12. The Apex Court in Attabira Regulated Market Committee v. Ganesh Rice Mills, , observed that "though notice was sent to the respondent on 14-4-1992 till date neither Acknowledgement nor unserved envelope has been received. Under these circumstances, the notice must be deemed to have been served on the respondent." 13. In Indian Bank v. Datla Venkata Chinna Krishnam Raju, , the Apex Court observed: "Notice was sent by registered post but neither the A.D. card nor the unserved registered cover has been received bac....
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....1996 was sent under registered post acknowledgment due and the complainant has received neither the unserved postal cover nor the acknowledgment. As observed by me the presumption that is available that the notice is deemed to have been served, is a rebuttable presumption. It is hot as if for all practical purposes, the Court has to presume and proceed as if the notice was served as is required in law. It shall certainly be open to the petitioners accused to rebut the presumption and establish that in fact, the complainant did not send any such notice under registered post acknowledgment due. At this stage, it is not possible for this Court to record any finding as to whether the notice was in fact, sent to the petitioner accused under registered post acknowledgment due. In a proceeding under Section 482 of the Code of Criminal Procedure, this Court has to proceed on the assumption that the averments made in the complaint are true on their face value. 19. The learned Counsel for the petitioners further urges that the complainant did not enclose the postal receipt along with the complaint evidencing the, registration of any cover containing the statutory notice. It is a matter of....