Andhra HC (Pre-Telangana)
Yadlapalli Satyam vs K. Seetharamanjaneyulu And Anr. on 28 January, 2005
Equivalent citations: 2005(1)ALD(CRI)473, III(2005)BC576, [2005]125COMPCAS623(AP), 2005CRILJ2489
JUDGMENT G. Yethirajulu, J.
1. This appeal is preferred by the complainant in C. C. No. 4 of 1998 on the file of the VI Metropolitan Magistrate, Vijayawada for the offence under Section 138 of the Negotiable Instruments Act.
2. According to the appellant, the respondent did not dispute the liability under a promissory note and the issuing of cheque for discharge of the liability. Learned counsel for the appellant submitted that the lower court dismissed the complaint on the sole ground that there was no service of notice on the respondent. He further submitted that since the notice was returned with an endorsement "not available", which was sent to the correct address of the respondent, it shall be held to be proper service and the order passed by the lower court dismissing the complaint on that ground is liable to be set aside.
3. In view of the submissions made by learned counsel for the appellant, the point for consideration is :
"Whether the postal endorsement "not available" made on the notice sent to the respondent amounts to valid proof of service, and whether the judgment of the lower court dated November 1, 2000, is liable to be set aside ?"
4. Point : As seen from the record, the appellant presented a cheque, which was issued by the respondent towards discharge of liability, in the bank and the bank returned the cheque on November 27, 1997, with an endorsement "insufficient funds". After receipt of the said endorsement, the appellant issued a legal notice on December 3, 1997, to the respondent and it was returned with an endorsement "not available" on December 12, 1997. The appellant again sent another notice through a certificate of posting on December 13, 1997, and filed the complaint before the lower court on January 21, 1998. The lower court after taking into consideration the evidence placed by both parties and after relying on a judgment of this High Court in A. Sudershan v. Mannen (Shabir) [1997] (1) ALD (Crl.) 795; [1999] 96 Comp Cas 435, dismissed the complaint on the ground that there was no proof of service. In the above judgment, this court held that only because a person is not found in his house by the postman for seven (7) continuous days, there cannot be a presumption of the service of notice as contemplated by the Act and such notice is invalid.
5. Learned counsel for the appellant submitted that in the light of the latest judgment of the Supreme Court in V. Raja Kumari v. Subbarama Naidu (P.) the notice issued by the appellant is valid in law, and the complaint can be maintained.
6. In the case covered by the above decision, a statutory notice was sent to the correct address of the drawer, but it was returned with an endorsement that the door of the house was locked. The High Court held that non-service of the notice could not be a ground for dismissal of the complaint even before the same was numbered. The burden is on the complainant to show that the accused drawer has managed to get an incorrect postal acknowledgment. The Supreme Court upheld the judgment of the High Court.
7. Learned counsel for the appellant by relying on this judgment submitted that the lower court ought to have held that the addressee "not available" endorsement is sufficient service of notice.
8. In the case covered by the judgment of the Supreme Court, some evidence was adduced by the complainant to show that the accused while remaining at the address managed to get an endorsement through postal authorities that he is not available at the address. Therefore, the Hon'ble Supreme Court affirmed the judgment of the High Court that under those circumstances, it amounts to sufficient service. But, in the case on hand, the appellant did not adduce any evidence to show that the respondent was present at the address and he managed to get the endorsement from the postal authorities that he was absent for seven days. On the other hand, the respondent examined D.W. 1, the Village Administrative Officer, to show that he was absent during that period. The purpose of the statutory notice is to give an opportunity to the accused to make the payment of the amount covered by the cheque. Unless there is proof that there is service of notice or the endorsement was managed by the accused (addressee), it cannot be said that there was valid service of notice. In the light of the above circumstances, the lower court was right in coming to a conclusion that there was no valid service of notice. I do not find any force in the grounds of appeal. Hence, the appeal is dismissed.