Karnataka High Court
State Through G.D.C.C. Bank Ltd. vs Shri.Hanmayya S/O Basayya Guttedar on 10 August, 2018
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF AUGUST 2018
BEFORE
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
CRIMINAL APPEAL No.200127/2014
Between:
The State through GDCC Bank Ltd.,
Afzalpur
... Appellant
(By Sri R.S.Patil, Advocate)
And:
Sri Hanmayya S/o Basayya Guttedar
R/o Badadal, Taluk: Afzalpur
District: Gulbarga
... Respondent
(Notice served but unrepresented)
This Criminal appeal is filed under Section 378 (4) of
Cr.P.C. praying to set aside the judgment and order in
C.C.No.84/2014 dated 11.11.2014 at Annexure-A, passed by
the JMFC Afzalpur and convict the accused under Section
138 of NI Act and direct accused to pay the cheque amount.
This appeal coming on for admission, this day, the
Court made the following:
2
JUDGMENT
Heard the learned counsel for the appellant. Respondent though remained absent, no representation from his side, therefore the matter is heard on merits of the case on admission. Perused the records.
2. A short question that arose for consideration whether the trial Court has committed any serious error under Section 138 (c) of Negotiable Instruments Act (hereinafter referred to as 'NI' Act) without refering to General Clauses Act 1897 with regard to service of notice issued by the complainant under Section 138 of NI Act.
3. In order to answer the above raised question, the factual matrix of this case has to be borne in mind. The appellant herein has filed a complaint under Section 200 Cr.P.C. alleging offences under Section 138 of NI Act. In fact he has specifically stated in the complaint that, in compliance of Section 138 of NI Act, he has issued a notice to the accused person and the said notice was served on the accused and within 15 days from the date of receipt of 3 demand notice, accused has not complied with the notice nor can he replied to the said notice. Therefore, within a specified time, he lodged a complaint. In fact the accused appeared before the Court and contested the proceedings. He has taken up the contention that, the notice was not actually served upon him.
4. In order to show the service of notice, the complainant has produced a document i.e.Ex. P-8 issued by the Senior Superintendent of Post Office, Kalaburagi, wherein it is stated that:
"In continuation of their letter regarding the complaint No.585000-06939, it is to inform the complainant that, the complaint of non receipt of acknowledgement of proof of delivery of registered letter with acknowledgement with Transaction No.RK690533568 is settled on 28.02.2014, with the information that the registered letter was delivered on 29.01.2014."
5. So far as this document is concerned, the trial Court has not at all considered the impact of this particular document. However, exhibit P-6 has been taken into 4 consideration, it is the complaint lodged by the complainant before Postal Authority seeking information about the service of the said legal notice issued as per exhibit P-4. Exhibit P-5 is the postal receipt and endorsement issued by the postal authorities with regard to complaint at Ex.P-8. The trial Court has considered Ex.P-6 but not Ex.P-8.
6. Be that as it may, NI Act under Section 138 (b) referred with regard to issuance of notice by registered post, making demand of the payment of the amount and according to Section 138 (c) after receipt of the said notice, the drawer of the cheque fails to make payment to the payee that creates a cause of action for parties to file a complaint. These two provisions of Section 138 of NI Act i.e. (b) and (c) have to be understood in consonance to each other so far as issuance of notice is concerned. Even deemed notice can be infered by the Court in certain circumstances, if sufficient materials are placed before the Court. If a registered letter or the notice has been addressed with proper and correct address of the accused and duly posted then once the cover dispatched to the postal authorities, it is to be presumed 5 that on the very next day the said cover served on the other side.
7. Therefore issuance of notice and receipt of notice are consequential to each other and receipt of notice cannot be in any manner interpreted isolatedly, but the trial Court has tried to interpret the same according to provisions of Section 138 (c), to the effect that receipt of notice contemplated shall be understood, that it may be received personally by the accused. In my opinion, such interpretation causes damage to the statutory provisions of the General Clauses Act and also NI Act.
8. It is to be noted Section 27 of General Clauses Act 1897, prescribes the statutory presumption under certain circumstances, the Court has to presume the service of notice by post, which reads thus:
"Where any (Central Act) or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression 'serve' or either of the expressions 'give' or 'send' or any other expressions is used, then, unless a different 6 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 that contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
9. Therefore on plain understanding of the above said provisions, if a notice is sent by a Registered Post to a person concerned, to his proper address then it is deemed to be served on him in due course, unless contrary is proved and further if there is any endorsement as 'not claimed' that is also sufficient to prove deemed service of notice. Whether a notice therefore sent by himself by registered post and the same is returned by the opponent person with an endorsement even with 'refusal' or if it is not returned then also it would be presumed that, the notice has been served, unless the rebuttal is given in respect of non service of notice.
10. In this particular case, accused has never made any efforts to examine himself or examine postal authorities to show that, the notice has not been answered. Ex.P-8 7 clearly discloses that the postal authorities have settled the issue by issuing an endorsement that, said notice was served on the accused on 29.01.2014.
11. Therefore, in view of the said facts and circumstances, the trail Court has committed serious error in answering that, notice issued by the complainant to the accused has not been served and consequently, dismissed the complaint of the complainant.
12. Though the trial Court has framed as many as five points for consideration, except this particular point, with regard to issuance of notice, no other points have been answered. Therefore, it is wise to set aside the order of the trial Court and remand the same for fresh disposal of the case, in accordance with law, holding that the said notice has been served on the respondent-accused. With these observations, I proceed to pass the following:
ORDER Appeal is allowed.
Consequently the judgment of the trial Court in C.C. 8 No.84/2014 dated 11.11.2014 passed by the JMFC, Afzalpur, is hereby set aside. The matter is remanded to the trial Court with a direction to the trial Court to hear both the parties and pass appropriate judgment giving reasons and findings, so far as other points framed for consideration of the Court except the one which is answered by this Court with regard to service of notice to the accused.
Sd/-
JUDGE VNR