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 MANU/SC/0313/1992 : (1992) 1 SCC 647; State of M.P. v. Hiralal and Ors. MANU/SC/1388/1996 : (1996) 7 SCC 523 and V. Raja Kumari v. P. Subbarama Naidu and Anr. MANU/SC/0937/2004 : (2004) 8 SCC 74] It is, therefore, manifest that in view of the presumption available Under Section 27 of the Act, it is not necessary to aver in the complaint Under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved.
It is thus clear that Section 114 of the Evidence Act enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. Section 27 of the GC Act gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. It is not necessary to 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.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1523
OF 2014
[Arising out of Special Leave Petition (Crl.)No.8783 of 2013]
M/s. Ajeet Seeds Ltd.
... Appellant
... Respondent
Vs.
K. Gopala Krishnaiah
Citation;AIR 2014 SC 3057,2014ALLMR(Cri)2738(SC), 2014CriLJ3937,
(SMT.) RANJANA PRAKASH DESAI, J.
1. Leave granted.
2. The appellant is the complainant.
He has challenged
the judgment and order dated 21/03/2013 passed by the
High Court of Judicature of Bombay, Bench at Aurangabad in
Criminal Writ Petition No.1131 of 2012 whereby the High
Court has quashed the complaint filed by him under Section
138 of the Negotiable Instruments Act, 1881 (‘the NI Act’)
Page 1
2
being SCC No. 4118 of 2007 in the court of Chief Judicial
Magistrate, First Class, Aurangabad.
3.
For the purpose of disposal of this appeal, it is not
necessary to narrate all the facts of the case. Suffice it to
say that the complaint was filed alleging that the cheque
issued by the respondent-accused for repayment of a legally
recoverable debt bounced. On 17/6/2011 learned Magistrate
issued process.
The respondent-accused filed a criminal
revision application before the Additional Sessions Judge,
Aurangabad mainly on the assertion that the demand notice
was not served on him.
The said criminal revision
application was rejected. Being aggrieved by the said order,
the respondent-accused filed criminal writ petition in the
High Court under Section 482 of the Code of Criminal
Procedure, 1973 (‘the Cr.P.C.’).
The High Court quashed
the complaint on a short ground that on reading verification
of the complaint dated 17/6/2011, it is explicit that there are
no recitals to demonstrate that the notice issued under
Section 138 of the NI Act by the complainant was served
Page 2
3
upon the respondent-accused on any specific date. The High
Court observed that there is no proof that either the notice
was served or it was returned unserved/unclaimed and that
that there is no averment in the complaint about the same.
The High Court concluded that, therefore, there could not be
a cause of action to prosecute the accused under Section
138 of the NI Act. For coming to this conclusion, the High
Court relied on the order of this Court in Shakti Travel &
Tours v. State of Bihar & Anr 1. The extract on which the
High Court relied upon could be quoted :
“2. The accused who is the appellant,
assails the order of the High Court
refusing to quash the complaint filed
under Section 138 of the Negotiable
Instruments Act. The only ground on
which the learned counsel for the
appellant prays for quashing of the
complaint is that on the assertions made
in paragraph 8 of the complaint, it must
be held that notice has not been served
and, therefore, an application under
Section 138 could not have been
maintained.
Undoubtedly, the accused
has a right to pay the money within 15
days from the date of the service of notice
and only when it fails to pay, is it open for
the complainant to file a case under
1
(2002) 9 SCC 415
Page 3
4
Section 138 of the Negotiable Instruments
Act. That being the position and in the
complaint
itself
having
not
been
mentioned that the notice has been
served, on the assertions made in para 8,
the complainant itself is not maintainable.
We accordingly quash the complaint.”
4.
We have heard, at some length, Mr. S.S. Choudhari,
learned
counsel
appearing
for
the
appellant.
Counsel
submitted that the High Court has erred in quashing the
complaint on the ground that complaint is silent about
service of notice. Counsel submitted that in C.C. Alavi Haji
v. Palapetty Muhammed & Anr.2, a three Judge Bench of
this Court has conclusively decided this issue. It is held in
this case that it is not necessary to aver in the complaint
that notice was served upon the accused.
The impugned
order, therefore, deserves to be set aside.
5.
We are inclined to agree with the counsel for the
appellant.
6.
In C.C. Alavi Haji, a three-Judge Bench of this Court
was dealing with the question referred by a two-Judge Bench
2
(2007) 6 SCC 555
Page 4
5
for consideration. The referring Bench was of the view that
in D. Vinod Shivappa
v.
Nanda Belliappa 3, this Court
did not take note of Section 114 of the Evidence Act in its
proper perspective.
It felt that presumption under Section
114 of the Evidence Act being a rebuttable presumption, the
complainant should make certain necessary averments to
raise the presumption of service of notice; that it was not
sufficient for a complainant to state that a notice was sent
by registered post and that the notice was returned with the
endorsement ‘out of station’ and that there should be a
further averment that the addressee-drawer had deliberately
avoided receiving the notice or that the addressee had
knowledge of the notice, for raising a presumption under
Section 114 of the Evidence Act.
was,
therefore,
referred
to
The following question
the
larger
Bench
for
consideration.
“Whether in absence of any averments in the
complaint to the effect that the accused had a role
to play in the matter of non-receipt of legal notice;
or that the accused deliberately avoided service of
notice, the same could have been entertained
3
(2006) 6 SCC 456
Page 5
6
keeping in view the decision of this Court in Vinod
Shivappa’s case?”
7.
Dealing with the above question, this Court referred to
K. Bhaskaran v. Sankaran Vaidhyan Balan 4, where this
Court referred to Section 27 of the General Clauses Act,
1897 (‘the GC Act’) and observed that since the NI Act does
not require that notice should only be given by ‘post’ in a
case where the sender has despatched the notice by post
with correct address written on it, Section 27 of the GC Act
could be profitably imported and in such a situation service
of notice is deemed to have been effected on the sender
unless he proves that it was really not served and that he
was not responsible for such non-service.
8.
This Court then referred to Vinod Shivappa’s case,
where the above aspects have been highlighted. This Court
quoted the following paragraph from Vinod Shivappa with
approval.
“15. We cannot also lose sight of the fact that the
drawer may by dubious means manage to get an
4
(1999) 7 SCC 510
Page 6
7
incorrect endorsement made on the envelope that
the premises has been found locked or that the
addressee was not available at the time when
postman went for delivery of the letter. It may be
that the address is correct and even the
addressee is available but a wrong endorsement is
manipulated by the addressee. In such a case, if
the facts are proved, it may amount to refusal of
the notice. If the complainant is able to prove that
the drawer of the cheque knew about the notice
and deliberately evaded service and got a false
endorsement made only to defeat the process of
law, the Court shall presume service of notice.
This, however, is a matter of evidence and proof.
Thus even in a case where the notice is returned
with the endorsement that the premises has
always been found locked or the addressee was
not available at the time of postal delivery, it will
be open to the complainant to prove at the trial by
evidence that the endorsement is not correct and
that the addressee, namely the drawer of the
cheque, with knowledge of the notice had
deliberately avoided to receive notice. Therefore,
it would be pre-mature at the stage of issuance of
process, to move the High Court for quashing of
the proceeding under Section 482 of the Code of
Criminal Procedure. The question as to whether
the service of notice has been fraudulently refused
by unscrupulous means is a question of fact to be
decided on the basis of evidence. In such a case
the High Court ought not to exercise its
jurisdiction under Section 482 of the Code of
Criminal Procedure.”
9.
This Court then explained the nature of presumptions
under Section 114 of the Evidence Act and under Section 27
Page 7
8
of the GC Act and pointed out how these two presumptions
are to be employed while considering the question of service
of notice under Section 138 of the NI Act.
The relevant
paragraphs read as under:
“13. According to Section 114 of the Act, read with
Illustration (f) thereunder, when it appears to the
Court that the common course of business renders
it probable that a thing would happen, the Court
may draw presumption that the thing would have
happened, unless there are circumstances in a
particular case to show that the common course of
business was not followed. Thus, Section 114
enables the Court to presume the existence of any
fact which it thinks likely to have happened,
regard being had to the common course of natural
events, human conduct and public and private
business in their relation to the facts of the
particular case. Consequently, the court can
presume that the common course of business has
been followed in particular cases. When applied to
communications sent by post, Section 114 enables
the Court to presume that in the common course
of natural events, the communication would have
been delivered at the address of the addressee.
But the presumption that is raised under Section
27 of the G.C. Act is a far stronger presumption.
Further, while Section 114 of Evidence Act refers
to a general presumption, Section 27 refers to a
specific presumption. For the sake of ready
reference, Section 27 of G.C. Act is extracted
below:
Page 8
9
“27. Meaning of service by post.-
Where any Central Act or regulation
made after the commencement of
this Act authorizes or requires any
document to be served by post,
whether the expression ‘serve’ or
either of the expressions ‘give’ or
‘send’ or any other expression is
used, then, unless a different
intention appears, the service shall
be deemed to be effected by properly
addressing, pre-paying and posting
by registered post, a letter containing
the document, and, unless the
contrary is proved, to have been
effected at the time at which the
letter would be delivered in the
ordinary course of post”.
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 Vs. Natthu Singh
Page 9
10
(1992) 1 SCC 647; State of M.P. Vs. Hiralal & Ors.
(1996) 7 SCC 523 and V.Raja Kumari Vs.
P.Subbarama Naidu & Anr. (2004) 8 SCC 74] It is,
therefore, manifest that in view of the
presumption available under Section 27 of the Act,
it is not necessary to aver in the complaint under
Section 138 of the Act that service of notice was
evaded by the accused or that the accused had a
role to play in the return of the notice unserved.”
10. It is thus clear that Section 114 of the Evidence Act
enables the Court to presume that in the common course of
natural
events,
the
communication
would
have
been
delivered at the address of the addressee. Section 27 of the
GC Act gives rise to a presumption that service of notice has
been effected when it is sent to the correct address by
registered post. It is not necessary to 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.
Page 10
11
11. Applying the above conclusions to the facts of this case,
it must be held that the High Court clearly erred in quashing
the complaint on the ground that there was no recital in the
complaint that the notice under Section 138 of the NI Act
was served upon the accused. The High Court also erred in
quashing the complaint on the ground that there was no
proof either that the notice was served or it was returned
unserved/unclaimed. That is a matter of evidence. We must
mention that in C.C. Alavi Haji, this Court did not deviate
from the view taken in Vinod Shivappa, but reiterated the
view expressed therein with certain clarification. We have
already
quoted
the
relevant
paragraphs
from
Vinod
Shivappa where 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 of the Cr.P.C.
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 is misplaced.
Page 11
12
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.
13. In the circumstances, the impugned judgment is set
aside and the instant complaint is restored. The appeal is
allowed.
....................................J.
(Ranjana Prakash Desai)
....................................J.
(N.V. Ramana)
New Delhi;
July 16, 2014.
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