TaxTMI 
TaxTMI 
TaxTMI 
2020 (1) TMI 1584
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....r.P.C. application, the applicant has questioned summoning order dated 8th March, 2017 as well as the proceedings of complaint case under Section 138 of Negotiable Instrument Act, 1881 (hereinafter referred to as "N.I. Act") registered as Complaint Case No. 846 of 2016 (Ayub Hasan Vs. Master Ali Jan), pending in the court of learned Judicial Magistrate, Garh Mukteshwar, Hapur. Learned counsel for the applicant has argued that it is admitted case of the opposite party no. 2 that though, the opposite party no. 2 has sent a notice dated 7th October, 2016, but the service of notice has not been effected and therefore, the complaint which has been filed on 7th November, 2016, is not maintainable as the time period of 15 days cannot be calculat....
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....tion 200, Cr. P.C. nor in the counter-affidavit any date of service on notice demanding repayment of cheque money from the applicants is mentioned. No document was also appended along with the complaint so as to indicate the said date. Even during the course of argument, the counsel for the respondent-complainant could not point out the date of service of such notice. Thus, in the total absence of date of service of notice demanding payment of the cheque amount, no offence is made out against the applicants. Moreover, it cannot be said that any such notice was ever served on the applicants and consequently fifteen days period for making the payment of the cheque money cannot be counted and unless that is done no offence is made out against ....
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....e). Unless the twin conditions are satisfied Section 27 of the General Clauses Act will not apply. In the present case the second condition is not satisfied and therefore the service of notice on the applicants cannot be presumed. Since the legislature has kept service by private courier outside the purview of the Section 27 of the General Clauses Act, therefore the Courts cannot implant such presumption of service into that section and rightly so because private courier services are privately run businesses without any authenticity of service. (Emphasis mine) consequently, the contention of the learned counsel for the applicant that the service should be presumed in the present case cannot be accepted as it does not hold good on the provis....
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....y Collector, Land Acquisition and Ors. Anr.15 and Shimla Development Authority and Ors. v. Santosh Sharma (Smt.) and Anr., (1997) 2 SCC 637. 20. It has also been well settled by Hon'ble Supreme Court that when notice is sent at the correct address by registered post and neither acknowledgment nor undelivered registered cover is received back then there is presumption of service although rebuttable. The burden to rebut presumption lies on the party challenging the factum of service. Reference in this regard may be had to the judgments of Hon'ble Supreme Court in the case of Indian Bank v. Datla Venkata Chinna Krishnam Raju17; Ram Chandra Verma v. Jagat Singh Singhi and others18; ATTABIRA Regulated Market Committee v. Ganesh Rice M....
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.... The complainant has not mentioned as to when he received back envelop containing notice and whether after receiving envelop back he had made complaint or prior to that. Accordingly even if he made complaint after accepting of the notice from the post office with note 'left', he could have filed such complaint only after expiry of 15 days but it is not the case here. Secondly if he considers that service of notice was effected then in all probability complaint should have been filed only after expiry of 15 days, and the date of service would have been clearly mentioned in the complaint. In the absence of any such mention in complaint itself, no inference of effective service and requirement of 15 days prior notice can be presumed to....