AI Drafter - (New and Powerful) 
Generate professional replies, appeals, opinions to Show Cause Notices, assessment orders, audit objections, and other legal communications using TaxTMI's AI Drafter. 
TaxTMI 
TaxTMI 
2021 (6) TMI 475
X X X X Extracts X X X X
X X X X Extracts X X X X
....t Bank of Baroda, Branch Pallavpuram, District Meerut but it was returned with the remark "fund insufficient" vide memo dated 04.09.2012. On 19.09.2012, a legal notice was sent to the applicant. Neither the said notice nor its acknowledgment due returned. On 02.11.2012, again a legal notice was sent to the applicant. There is a presumption of service of the said notice upon the applicant on 04.11.2012. Despite service of notice, the applicant did not make any payment nor sent any reply. The complaint was filed on 19.11.2012. The learned Magistrate after recording the statement under Sections 200 and 202 Cr.P.C. summoned the applicant vide order dated 04.10.2013, under Section 138 of the Act. Learned counsel for the applicant submits that in the complaint the date of service of notice of demand dated 19.09.2012 on the complainant has not been disclosed and as such, no proceedings under Section 138 of the Act could be drawn against the applicant. Elaborating his submission counsel for the applicant contends that since the date of service of notice dated 19.09.2012 has not been mentioned, from which date the cause of action arose to the complainant to file the present complai....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both: PROVIDED that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....." 14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement "refused" or "not available in the house" or "house locked" or "shop closed" or "addressee not in station", due service has to be presumed. (Vide Jagdish Singh v. Natthu Singh [(1992) 1 SCC 647 : AIR 1992 SC 1604] ; State of M.P. v. Hiralal [(1996) 7 SCC 523] and V. Raja Kumari v. P. Subbarama Naidu [(2004) 8 SCC 774: 2005 SCC (Cri) 393].) It is, therefore, manifest that in view of the presumption av....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., even though he genuinely intended to honour the cheque drawn by him. The law treats such lapses induced by inadvertence or negligence to be pardonable, provided the drawer after notice makes amends and pays the amount within the prescribed period. It is for this reason that Clause (c) of proviso to Section 138 provides that the section shall not apply unless the drawer of the cheque fails to make the payment within 15 days of the receipt of the said notice. To repeat, the proviso is meant to protect honest drawers whose cheques may have been dishonoured for the fault of others, or who may have genuinely wanted to fulfil their promise but on account of inadvertence or negligence failed to make necessary arrangements for the payment of the cheque. The proviso is not meant to protect unscrupulous drawers who never intended to honour the cheques issued by them, it being a part of their modus operandi to cheat unsuspecting persons." 17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of criminal law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not re....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed therein with certain clarification. We have already quoted the relevant paragraphs from Vinod Shivappa wherein this Court has held that service of notice is a matter of evidence and proof and it would be premature at the stage of issuance of process to move the High Court for quashing of the proceeding under Section 482 CrPC. These observations are squarely attracted to the present case. The High Court's reliance on an order passed by a two-Judge Bench in Shakti Travel & Tours [Shakti Travel & Tours v. State of Bihar, (2002) 9 SCC 415: 2003 SCC (Cri) 1217] is misplaced. The order in Shakti Travel & Tours does not give any idea about the factual matrix of that case. It does not advert to rival submissions. It cannot be said therefore that it lays down any law. In any case in C.C. Alavi Haji, to which we have made a reference, the three-Judge Bench has conclusively decided the issue. In our opinion, the judgment of the two-Judge Bench in Shakti Travel & Tours does not hold the field any more. 12. In the circumstances, the impugned judgment is set aside and the instant complaint is restored. The appeal is allowed." In view of the settled legal position, as noticed a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....so was the same as the 'receipt of notice' a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act." [Emphasis supplied] 25. The complaint petition admittedly was filed on 20.04.2001. The notice having been sent on 17.01.2001, if the presumption of service of notice within a reasonable time is raised, it should be deemed to have been served at best within a period of thirty days from the date of issuance thereof, i.e., 16.02.2001. The accused was required to make payment in terms of the said notice within fifteen days thereafter, i.e., on or about 2.03.2001. The complaint petition, therefore, should have been filed by 2.04.2001. 26. *** *** *** 27. In Madishetti Bala Ramul v. Land Acquisition Officer [(2007) 9 SCC 650], this Court held as under : (SCC p 656, para 18) "18. It is not the case of the appellants that the total amount of compensation stands reduced. If it had not been, we fail to understand as to how Section 25 will have any application in the instant case. Furthermore, Section 25 being a substantive provision wi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e of summoning has only to see whether a prima facie case is made out or not. The factum of disputed service of notice requires adjudication on the basis of evidence and the same can only be done and appreciated by the trial court and not by this Court under the jurisdiction conferred by Section 482 Cr.P.C. The judgement of this Court in the case of Alijan (supra) cited by the learned counsel for the applicant in support of his argument is not good law in view of the judgements of the Supreme Court in C.C.Alavi Haji and (supra), Ajeet Seeds Limited (supra) and Subodh S. Salaskar (supra). The second contention raised by learned counsel for the applicant that the complaint on the basis of second notice dated 02.11.2012 was not maintainable, also cannot be accepted for the reason that the cause of action to file the complaint in question arose under clause (c) of the proviso to Section 138 of the Act from sending of the first notice dated 19.09.2012 and not from the notice dated 02.11.2012, as the second notice dated 02.11.2012 is only a reminder notice to the drawer of the cheque and as such, it cannot be construed as an admission of non-service of first notice by the compla....