1. Introduction
The legal battle in question began with a prayer to set aside an order dated 19.07.2022. This order summoned the petitioner under section 138 of the Negotiable Instruments Act, 1881, in complaint case no. 80 of 2019. The petitioner further challenged the order dated 01.06.2023, passed by the revisional court in Criminal Revision No. 305 of 2022, which affirmed the summoning order. To understand the nuances of this case, it’s crucial to delve into the relevant facts.
2. The Relevant Facts
The complainant initiated the legal proceedings by filing a complaint under section 138 of the Negotiable Instruments Act, 1881 (referred to as the “NI Act”) against the accused. To substantiate the complaint, the complainant provided evidence under section 200 of the Code of Criminal Procedure (Cr.P.C.) and relevant documents. The court, in the initial proceedings, heard the complainant and proceeded to summon the accused under section 138 of the NI Act.
The key documents included a cheque of Rs. 2,75,000/-, which had been returned by the bank on 02.04.2019 with a remark of “funds insufficient.” Alongside this, there was a return memo and the demand notice dated 22.02.2019. The revisional court, after a thorough examination, aligned itself with the order of the trial court and dismissed the revision.
3. The Petitioner’s Contention
The crux of the petitioner’s argument lies in the contention that the complainant failed to provide any evidence that the notice was served on him. This, according to the petitioner, meant that the essential condition for taking cognizance, as specified under section 138 clause (c) read with section 142(1)(b) of the NI Act, had not been met.
4. The Respondent’s Argument
The respondent, on the other hand, maintained that although there was no explicit mention of the date when the demand notice was received by the accused in the trial court’s order, the revisional court referred to the track consignment report of the Postal Department (paper no. 9Ka/2). This, they argued, validated the trial court’s order and eliminated any fault in it.
5. Court’s Observations
Upon reviewing the revisional court’s order, it becomes evident that the court took note of the aforementioned contention. While the court acknowledged that there was no specific date mentioned concerning the service of the demand notice, it was found that the track consignment report, a document on record, contradicted the petitioner’s claim.
6. Relevant Judgments
The petitioner cited a judgment of the Allahabad High Court in ‘Deepak Kumar and Another vs. State of U.P. and Another; 2007 (2) Civil Court Cases 467 (Allahabad).’ This judgment listed the essential requirements that must be met for the court to take cognizance of an offense under section 138 of the N.I. Act. The judgment stressed that certain key dates are critical for making a case under section 138, NI Act, including the date mentioned on the cheque, the date of deposit in the bank, the date of the notice from the bank, the date of notice given by the payee, and the date of filing the complaint.
7. Clarifications on the Importance of Dates
The judgment made it clear that while the date of the receipt of notice is significant, it is not obligatory to mention a specific date concerning the receipt of the demand notice in the complaint itself. The day of receipt can be inferred from the evidence on record.
8. Supreme Court’s Perspective
The petitioner also referred to a judgment of the Supreme Court in ‘Dashrathbhai Trikambhai Patel vs. Hitesh Mahendrabhai Patel and Another; 2022 (4) Civil Court Cases 279 (S.C.). In this case, the Supreme Court discussed the absence of averments in a complaint about the service of notice upon the accused. The court affirmed that when a notice is sent by registered post to the correct address, it is unnecessary to aver in the complaint that the notice was evaded by the accused or that the accused had a role in the return of the notice unserved.
9. The Power of Legal Presumptions
The judgment emphasized the power of legal presumptions under Section 114 of the Evidence Act and Section 27 of the General Clauses Act. These presumptions play a crucial role in determining the service of notice under Section 138 of the NI Act. The court clarified that unless the contrary is proven by the addressee, service of notice is deemed to have been effected at the time the letter would have been delivered in the ordinary course of business.
10. Resolution
In light of the Supreme Court’s judgment and the legal presumptions, the controversy raised by the petitioner is resolved. Even if the track consignment report is not filed, the court may presume service of notice in the ordinary course of business if it is shown that the notice was sent by registered post to the correct address.
In conclusion, the summoning order dated 19.07.2022, as well as the order dated 01.06.2023, have been upheld by the court. The petition’s lack of merit led to its dismissal.
Conclusion
The case discussed here underscores the importance of understanding the legal intricacies that can have a profound impact on legal proceedings. The interpretation of the Notice Deemed To Be Served principle by the Allahabad High Court serves as a significant legal precedent in cases related to section 138 of the Negotiable Instruments Act. It highlights the power of legal presumptions and the role they play in establishing the service of notices, ultimately influencing the course of legal proceedings.
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5 Unique FAQs
1. What is the Notice Deemed To Be Served principle?
The Notice Deemed To Be Served principle is a legal concept that pertains to the service of notices, particularly in cases involving section 138 of the Negotiable Instruments Act. It allows for the presumption of service when a notice is sent by registered post to the correct address.
2. What are the essential requirements for a section 138 NI Act case?
To make a case under section 138 of the Negotiable Instruments Act, certain crucial dates must be mentioned or evident in the complaint and accompanying documents. These dates include the date on the cheque, the date of its deposit, the
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