Document Fragment View

Matching Fragments

36. Firstly, it is noticed that the respondent accused has raised the issue with regard to the incorrect address found mentioned in the notice Ex.CW- 1/G (PW-1/A4), and the UPC Ex.CW-1/H-qua the notice issued to accused No.2 Kirman K. Mistry, at the aforesaid two addresses only. However, both the UPC and the notice show that the notice was sent to accused No.2 Kirman K. Mistry at another address, namely, Rajkamal Lane, Dr. S.S. Rao Road, Bombay. The accused is silent about the correctness of the said address. There is no evidence led by the accused to show that, either the said address is incorrect, or that it is not of the accused. Moreover, on perusal of the order sheets of the Trial Court, it is established that the summons were issued and sent on the same address as on the UPC i.e. "Land End Building, 11th Floor, Near Otris Club, Bandra, Bombay", and the same were served on the accused No.2 Kirman K. Mistry. Even if, for the sake of argument, it were to be accepted that there was some typographical error in the address in the notice issued to accused No.2 at one of the addresses, it is evident that the said error was not such as to prevent the service of notice on accused No.2, or even the other accused, on the said address. If that were so, the summons would not have been served on Kirman K. Mistry accused No.2 at Land End Building, 11th Floor, Near Otris Club, Bandra, Bombay.

"Every case has its own peculiar facts and circumstances and present case stands on totally different material facts and thus it is clearly distinguishable. From the perusal of UPC receipt, copy of which is Excw1/H, the date of posting is clearly visible and same is 23.04.98. In every case it is not necessary that Demand Notice has to be served by registered post only. Demand notice can also be served by UPC and it is for the court to judge whether in a particular case, court is satisfied with the service or not. The present complaint has been filed U/s 138 NI Act on dishonouring of the cheque. The complainant will certainly serve the Demand Notice as he is always interested in receiving the payment. Keeping in view the totality of circumstances, I am satisfied that accused no. 2 and 3 were served by UPC."

(Emphasis supplied)

38. When the application dated 01.05.1999 was filed by the accused, the trial was at the very initial stage and the only contention raised by the accused, for the notice not being served, was that the UPC can be procured very easily. If, in fact, the addresses of the accused persons on the notice were wrong, the accused would have raised that contention as well, apart from pleading that UPC can be procured very easily. Thus, this contention of the accused persons, that the addresses on the notice are non-existent, seems to be an afterthought. Further, the accused no. 2 Kirman K. Mistry in two of his affidavits - one dated 26.09.1998 (at page 169 of the part 3/4 file of the Trial Court record) and the second dated 21.10.1998 (at page 183 of the part 3/4 file of the Trial Court record), has mentioned his address as "Land End Bldg. 11th Floor, near Otris Club, Bandra". This address is the same as the address on which the on notice was sent by UPC by the complainant. Thus, the accused are precluded from raising the said submission. This appears to be no more than a red herring.

40. Reliance placed on the line of decisions, including Shiv Kumar (supra), to say that the UPC (Ex.PW1/H) cannot be relied upon as it is doubtful, does not impress this Court, in the factual background of this case. As observed by the learned Trial Court in its order dated 05.06.1999 (the relevant portion whereof have been extracted hereinabove), there was no reason for the appellant/complainant not to serve the demand notice upon the respondent/accused upon receiving the notice of dishonor. The cheques were of a fairly large amount of Rs. 1.78 crores. They had been dishonoured on repeated presentations. Therefore, it did not stand to reason that the appellant-complainant would not initiate action under Section 138 of the N.I.Act when the said statutory remedy was available to it. The complainant produced Shri V.K. Sharma, Public Relation Inspector, Malviya Nagar Post Office, as PW2. He deposed upon seeing the UPC certificate that the said document bears the stamp of Pushp Bhawan, Pushp Vihar, New Delhi - 110 062 (which he exhibited as Ex.PW1/A2). He also deposed that the UPC were duly sent to the persons duly addressed on the documents (Ex.PW1/A2) on 23.04.1988. He stated, "I have the documents EX 1/H photo copy which is also of the original and I have seen the stamp dt. 23.4.98 on UPC and the UPC were sent to the persons mentioned in the documents". Thus, the presumption under Section 114 of the Evidence Act came into play, and the same was not rebutted by the respondents/accused, as they failed to appear in the witness box to even claim on solemn affirmation, that they have not been served with the statutory notice.