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Showing contexts for: incorrect address in Hitaishi Publisher Pvt Ltd vs Anubhav Singhal on 28 March, 2024Matching Fragments
5. Thereafter, statement of accused was recorded under Section 313 Cr.P.C. on 22/02/2023 where all the incriminating evidence was put to the accused. The accused admitted his signatures on the cheque but denied filling any other particulars on the cheque. He stated that address on the legal notice is incorrect and that his correct address was 27/128, Ashok Nagar, Civil Lines, Kirawali Agra in 2017. He reiterated the defence stating that "I had executed the bond Ex. CW1/3. However, I had left the job CC No. 16313/2018 Hitaishi Publishers Pvt. Ltd Vs Anubhav Singhal 5/19 after intimating Mr. Amit Garg who was the Director of the complainant. At the time of joining I had given the cheque in question as security along with another cheque of Rs. 200/- for account verification. I am not liable to pay the cheque amount to the complainant." He denied any liability towards the complainant. Accused did not wish to lead DE and matter was fixed for final arguments.
16.Further, the Hon'ble High Court of Delhi in R.L. Varma & Sons vs. PC Sharma, 2019 SCC Online Del 8964, has observed as follows:
"22.Legal presumption of service of notice can only arise in case the notice is correctly addressed. If the notice is incorrectly addressed no legal presumption can arise..."
"24. Section 138 of the Negotiable Instruments Act mandates the issuance of the statutory notice as a pre-condition to filing of a complaint. The cause of action to file a complaint under section 138 of the Negotiable Instruments Act arises CC No. 16313/2018 Hitaishi Publishers Pvt. Ltd Vs Anubhav Singhal 12/19 only on issuance and service of statutory notice and failure of the accused to comply with the statutory notice. In the absence of service of statutory notice the cause of action would not accrue. Service of statutory notice would also include legal presumption of service if circumstances so warrant."
17.Accordingly, if the legal demand notice bears the incorrect address of the Accused, no presumption under Section 27 of the General Clause Act, 1897 can be drawn and the requirement of sending a legal demand notice will stand unfulfilled.
18.In the present case, the accused at the stage of framing of notice under Section 251 Cr.P.C. as well as in his statement under Section 313 Cr.P.C. had submitted that he had not received the legal demand notice. He further stated that his address mentioned on the legal demand notice, Ex. CW1/9 is incorrect as the correct address was 27/128, Ashok Nagar, Civil Lines, Kirawali Agra CC No. 16313/2018 Hitaishi Publishers Pvt. Ltd Vs Anubhav Singhal 13/19 and not 27/12B. During the course of arguments, Ld. Counsel for complainant argued that the demand notice was sent on correct address and the accused in connivance with the postman returned the notice to the complainant back. Per contra, Ld. Counsel for accused argued that no notice was received by the accused as the same was sent on incorrect address. At the time of his statement under section 313 Cr.P.C. the accused has specifically stated that the correct tower number is 27/128 and not 27/12B.
20.Thus, it is evident from the above stated facts that the demand notice was sent on an incorrect address and the same was received back by the complainant. Further, the complainant has failed to lead any evidence to show the reasons for his belief that the house no. was 27/12B and not 27/128. Since, Section 138 NI Act is a technical CC No. 16313/2018 Hitaishi Publishers Pvt. Ltd Vs Anubhav Singhal 14/19 offence, all ingredients as mentioned above must be established for the accrual of cause of action in favour of the Complainant. In view of the above detailed discussion, the Complainant has failed to establish the essential ingredients of Section 138 of NI Act, hence no presumption under Section 139 is attracted in the present case.