TaxTMI 
TaxTMI 
2025 (8) TMI 1393
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....ion 138 (b) of the Negotiable Instruments Act relating to service of notice". Though the notice dated 05.06.2018 was sent, it returned back with a remark 'left address'. A copy of the envelope is on page no. 29. In fact the issue is no more res integra as it is already decided in case of C.C. Alvai Haji Vs. Palapetty Muhammed and Anr. 2008 (1) Mh. L.J. Still Learned Additional Session Judge, Kolhapur falls pray to the arguments advanced on behalf of accused and set aside the process on 25.04.2023. Case put up by parties 3. According to the Complainant, the notice was sent on address which he found from the Aadhar card of the accused. A copy of the Aadhar card is on page no. 28. He has further pleaded in the complaint, in para no. 5....
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....t to be aware about correct address of the accused. He relied upon the observations in case of Shri Mangesh Satish Vairat and Ors. Vs. Smt. Sangita Tanaji Nanavare and Anr. passed by this Court in First Appeal No. 234 of 2020 dated 06.07.2023. It is no doubt true in case of Mangesh Vairat (Supra), learned Single Judge has referred to the observation made by the Hon'ble Supreme Court in case of C.C. Alvai Haji (supra) in para no. 4. In that matter, the issue was about service of the summons. The learned Judge has not accepted the service as proper (envelope returned back with remark 'left address') and given necessary directions. These observations will not be helpful to the Respondent for two reasons:- (i) The specific provision....
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....e said that the Complainant has complied with the provisions of Section 138(b) of Negotiable Instruments Act. This issue was decided in following two cases:- a) K. Bhaskaran Vs. Sankaran Vaidhyan Balan and Anr. (1999) 7 SCC 510 and b) D. Vinod Shivappa Vs. Nanda Belliappa 2006 (6) SCC 456. However, referring bench was of the view that in case of D. Vinod Shivappa (supra), the bench has not considered the provisions of Section 114 of the Indian Evidence Act and hence reference was made to larger bench. 11. The issue which was decided by larger bench finds place in para no. 2. In nutshell the issue was :- "when there are no averments in the complaint about role played by the accused about non- receipt of notic....
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....an Evidence Act (para 12). It talks about presumption:- "When applied to communications sent by post, Section 114 enables the court to presume that in the common course of natural event, the communication would have been delivered at the address of the addressee. But the presumption that is raised under Section 27 is far stronger presumption. Further, while Section 114 of the Evidence Act refers to a general presumption, Section 27 refers to a specific presumption. Necessity of pleadings 15. About necessity of pleading certain facts, it is observed :-- "in view of presumption under Section 27 when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in....
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.... observations in para no. 14 from the judgment of C.C. Alvai Haji (supra). Some of the contingencies about non-receipt of the notice are referred. It includes, refused, not available in the house, house locked, shop closed or addressee not in station. Even though those contingencies are referred in para no. 14, the interpretation that "the learned Advocate for the Respondent intends to advance" is not that interpretation. What is observed is "when the notice is sent by Registered post and returned with those remarks, due service has to be presumed". It does not support the submission advanced on behalf of the Respondent-Complainant. 19. On facts, Supreme Court observed there is sufficient compliance of the provisions of Section 138(b) wh....
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....of the Negotiable Instruments Act were not complied with. Sending of the notice is properly done. 22. The phrase 'receipt of the notice' is used for the purpose of the computation of the limitation. It cannot be far stretched to say that the Complainant has to show that the notice is served. At the time of the issuance of the process, there was sufficient material available before the trial Court to issue process. These are my prima-facie observations. While deciding the petition, the Revisional Court has not properly applied the ratio laid down in case of C.C. Alvai Haji (supra) . The order of the revisional Court needs to be set aside. 23. It is made clear that during the trial, the Respondent - accused is at liberty to raise all th....