Facts: The complainant issued notice intimating the dishonour of cheque and demanded payment on 04-08-2001, the same was returned on 10-08-2001 saying that the accused was out of station. There was no averment in the complaint to the effect that the notice was sent at the correct address of the drawer of the cheque by registered post acknowledgment due. But the returned envelope was annexed to the complaint and it thus, formed a part of the complaint which showed that the notice was sent by registered post acknowledgment due to the correct address and was returned with an endorsement that the addressee was abroad.

Issue :  Whether the mandatory requirement of issue of notice in terms of clause (b) of the proviso to section 138 of Negotiable Instrument Act, 1881 would stands complied by sending the notice by registered post at the correct address of the drawer ? as well as  Whether in absence of any averments in the complaint to the effect that the accused had a role to lay in the matter of non-receipt of legal notice; or that the accused deliberately avoided service of notice, the same could have been entertained ?

View : In K. Bhaskaran v. Sankaran Vaidhyan Balan and Anr. (1999) 7 SCC 510, the   expression came up for interpretation, section 138 of the Act, it was held that failure on the part of the drawer to pay the amount should be within fifteen days of the receipt of the said notice. Giving notice in the context is not the same as receipt of notice. Giving is a process of which receipt is the accomplishment. It is for the payee to perform the former process by sending the notice to the drawer at the correct address and for the drawer to comply with Clause (c) of the proviso. The notice issued in terms of clause (b) had been returned unclaimed and not as refused. Before the Court the questions was will there be any significant difference between the two so far as the presumption of service is concerned? It was observed that though Section 138 of the Act does not require that the notice should be given only by post, yet in a case where the sender has dispatched the notice by post with correct address written on it, the principle incorporated in Section 27 of the General Clauses Act, 1897 could profitably be imported. And hence held in that case, service of notice is deemed to have been effected on the sendee unless he proves that it was not really served and that he was not responsible for such non-service.

Further referring the case of D. Vinod Shivappa v. Nanda Belliappa (2006) 6 SCC 456 observed that, the presumption under Section 114 of the Evidence Act being a rebuttable presumption, the complaint should contain 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 Evidence Act.

Held : Dismissing the Appeal, the Court held that, the presumption under section 114 of the Evidence Act being a rebuttable presumption, the complaint should contain 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 the addressee had knowledge of the notice, for raising a presumption under section 114 of Evidence Act.  Section 27  of the General Clauses Act  gives rise to a presumption that service of notice has been affected when it is sent to the correct address by registered post.

Further held that there was no averment to the effect that the notice was sent at the correct address of the drawer of the cheque by registered post acknowledgment due. But the returned envelope was annexed to the complaint and it thus, formed a part of the complaint which showed that the notice was sent by registered post acknowledgment due to the correct address and was returned with an endorsement that the addressee was abroad. The requirements of section 138 of the Act had been sufficiently complied with. (Crl. A. No. 767 of 2007 dt.18/05/2007)

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SWAMI VIVEKANANDA