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1. Bhupesh Rathod V. Dayashankar Prasad Chaurasia & Anr. (2022) 2 SCC 355
2. Rangappa V.Sri.Mohan (2010) 11 SCC 441
3. M.M.T.C Ltd., & Anr.V.Medchi Chemicals and Pharma (P) Ltd. & Anr (2002) 1 SCC 234 CC No.30281/2022

12. Per contra learned counsel for the accused argued that complainant has not placed any substantial materials to establish that Ex.P2 cheque was issued by the accused towards discharge of legal liability. He has contended that the cheque in question is dated 24.07.2019 and the said cheque was returned on 25.07.2019 the complainant has to issue notice within 30 days to the accused i.e., on or before 24.08.2019. Ex.P3 is the notice dated 24.08.2019 but RPAD receipts discloses that the said notice was sent to the accused on 26.08.2019 and contended that mandatory requirements as provided u/s 138 of NI Act not complied. Further he has contended that the notice sent through courier does not have presumptive value of deemed service. Sec.94 of the NI Act discuss about mode of service of notice. In order to get the presumptive value of service of notice section 94 of NI Act is to be read along with section 27 of General Clauses Act and contended that the courier service is not the deemed mode of service. Therefore, no offene has been committed by the accused. Further he has contended that complainant is not the competent CC No.30281/2022 person to file this complaint. Present complaint is filed by unauthorized person. In order to substantiate his argument he has read Ex.P1 wherein in the body of said document it is mentioned as firm and not company. In this regard, he has relied upon citation reported in 2011 (11) SCC 524 and contended that when the complaint is not filed by the authorized person the complaint is not tenable in the eye of law. It is another contention of the accused that the present complainant has also filed commercial suit in Com.OS No.253/2019 it was got exhibited at Ex.D5 and the said suit was came to be dismissed on 27.09.2023. The complainant has been chief examined 4 times during that period the complainant has not produced authorization letter marked. The said document got created after dismissal of commercial suit. On these grounds and on the other grounds urged at the time of argument prays to acquit the accused by dismissing the complaint. In support of his arguments he has relied upon the citation as mentioned under:-

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CC No.30281/2022

16. In this backdrop, now I entered into the domain of defense set up by the accused to ascertain whether he has been able to rebut the presumption as contemplated U/sec.139 of the Negotiable Instruments Act, for which I find it appropriate to examine each and every aspect in detail.

17. It is contended by accused that the complainant has issued notice to the accused through registered post after lapse of mandatory period of 30 days as per section 138(b) of NI act. The notice sent by complainant through courier service is not recognized under Negotiable Instrument Act. In order to presume the service of notice through courier section 94 of NI act is to be read along with section 27 of General Clauses Act wherein the mode of service of notice by courier service is not recognized. Therefore it cannot be presumed that the notice sent by complainant through courier presumed to be deemed service. In support of his argument he has relied upon the citation reported in 2024 SCC online Allahabad 4829 between Rajeev Malhotra Vs. State of UP and another and 2020 SCC online Alahabad 96 in the case of Udainsenjiar CC No.30281/2022 Vs. State of UP and another and contended that the wordings of section of the General Clauses Act indicates that this section deals only with service by post and that too registered service. No other mode of service is embraced in section 27. Hence contended that the notice issued by complainant is not the proper mode of service. Hence prays to acquit the accused on this ground. On the basis of this rival contention on perusal of the record i.e., Legal notice marked at Ex.P4 discloses that the legal notice was kept ready to dispatch the same on 24.08.2019 i.e., on the last day of statuary period of 30th day. However, the said notice was sent through registered post on 26.08.2019. However, the said notice have been served on accused persons on 28.08.2019. The complainant has also sent legal notice to the accused on 24.08.2019 by way of courier service which can be evidenced at Ex.P8 & 9. The said notices which are sent through courier service are served and return with an endorsement stating "item delivered to the addressee" in order to prove the same complainant has produced track and trace report issued by professional courier marked at Ex.P10 & 11. It is the contention of accused that the notice CC No.30281/2022 sent through courier service to the accused is not the deemed service. Hence prays to acquit the accused on this ground. In the citation relied by counsel for accused i.e., reported in 2024 SCC online Alahabad 4829 wherein the Hon'ble High Court of Alahabad has observed that section 94 mode in which notice of dishonor may be given to a duly authorized agent of a person to whom it is required to be given or where he has died, to his legal representative or where he has been declared an insolvent to his assignee, may be by oral or written, may if written be sent by post and may be in any form but it must inform the party to whom it is given either in express terms or by reasonable intendment that the instrument has been dishonored and in what way and that he will be held liable there on and it must given within a reasonable time after dishonor at the place of business or at the residence of the party for whom it is intended. The Hon'ble High court of Allahabad further held that on conjoint reading of section 138 and 94 of NI Act it is clear that the notice of dishonoring of cheque should be given in writing and if it is given in writing then as per section 94 of NI Act it may be given through post for CC No.30281/2022 getting benefit of second limb of section 94 of the Act. If it is duly addressed then despite miscarriage, the notice will not be deemed to be invalid. In section 94 of NI Act the word used 'may' for sending the written notice through post is directory and not mandatory. Therefore, option of sending the written notice through courier service is not barred u/s 94 of NI Act. The only advantage of the sending through post is provided in the second part of section 94 of NI act which means if the notice is sent through post at correct address, even if the same could not reach at the destination, it will not be deemed to be invalid. The word service through post has been defined in the section 27 of General Clauses Act which provides for getting the benefit of presumption of service of notice it should be sent through registered post. From the above analysis it is clear that courier service has not been excluded u/s 94 of NI Act, but to get the benefit under section 27 General Clauses Act, a notice must be delivered through registered post. The Hon'ble Apex Court in the citation reported in (1999) 4 SCC 567 in the case of Sil import evase Vs.EXIM AIDES SILK Exporters, Bengaluru wherein the Hon'ble CC No.30281/2022 Apex Court held that negotiable instrument act 1881 section 138(b) notice in writing modes of giving sending notice by facts held permissible words and phrases giving notice in writing interpretation of statuses. Held that the mode of making such a demand is also prescribed in the clause, that it should be by giving notice in writing to the drawer of the cheque. No where it is said that such notice must be sent by registered post or that it should be dispatched through a messenger of any other modes. In view of dictum laid down by Hon'ble Apex Court as well as the Hon'ble High Court of Allahabad the sending of written notice through courier is service is not barred u/s 94 of NI Act. Moreover the notices sent through registered post to the accused persons was duly served upon them 28.08.2019 as per Ex.P6 & 7. Therefore in view of dictum laid down by Apex court, the arguments advanced by counsel for accused not tenable in the eye of law and the mode of issuance of written notice through courier service is also one of the recognized mode of service.