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Documents citing C.C. Alavi Haji vs Palapetty Muhammed & Anr on 18 May, 2007

S.Savithri vs S.K.Babu on 1 August, 2008

When the above said decision was brought to the notice of the learned senior counsel , he sought to submit that in the light of the Full Bench decision of the Apex Court reported in (2007) 6 Supreme Court Cases 555 (C.C.Alavi Haji Vs. Palapetty Muhammed and another) , the above decision could not be said to be good law. I am unable to accept the said contention of the learned senior counsel.
Madras High Court Cites 9 - Cited by 0 - K M Ram - Full Document

Omprakash Agarwal vs Kiran Chaudhary on 5 August, 2016

15. The maintainability of the present case having been established, let me now deal with the contentions raised by counsel for the accused to see whether accused has placed enough and cogent material before this court to rebut the said statutory presumption which arose in favour of the complainant. Section 118 of the NI Act inter alia provides that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the NI CC No. 46606/16 (old No. 251/15)                                                                        page no. 8 /13 Act stipulates that unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability. The said presumptions are rebuttable in nature. In the present case since the accused has not only admitted issuing the cheque in question to the complainant but also her signature on the cheque in question, the presumption under section 139 of the Negotiable Instrument Act would operate. However, the section merely raises a presumption, and not the existence per-se of a legally recoverable debt. The accused has denied receiving any legal notice from the complainant, although the statutory presumption of delivery of legal notice is in favour of the complainant, in view of the observation in C.C. Alavi Haji v. P. Mohammad (2007) 6 SCC 555. The Hon'ble Apex court, in the present case held that it is no longer pre requisite that service of legal notice has to be proved. Even if the service of legal notice is not proved, then receipt of the summons on the complaint is sufficient to raise the cause of action U/s 138 NI Act in favour of the complainant.
Delhi District Court Cites 17 - Cited by 0 - Full Document

Omprakash Agarwal vs Kiran Chaudhary on 5 August, 2016

15. The maintainability of the present case having been established, let me now deal with the contentions raised by counsel for the accused to see whether accused has placed enough and cogent material before this court to rebut the said statutory presumption which arose in favour of the complainant. Section 118 of the NI Act inter alia provides that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the NI Act stipulates that unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability. The said presumptions are rebuttable in nature. In the present case since the accused has not only admitted issuing the cheque in question to the complainant but also her signature on the cheque in question, the presumption under section 139 of the Negotiable Instrument Act would operate. However, the section merely raises a presumption, and not the existence per-se of a legally recoverable debt. The accused CC No. 50650/16 (old No. 250/15)                                                                       page no. 8 /13 has denied receiving any legal notice from the complainant, although the statutory presumption of delivery of legal notice is in favour of the complainant, in view of the observation in C.C. Alavi Haji v. P. Mohammad (2007) 6 SCC 555. The Hon'ble Apex court, in the present case held that it is no longer pre requisite that service of legal notice has to be proved. Even if the service of legal notice is not proved, then receipt of the summons on the complaint is sufficient to raise the cause of action U/s 138 NI Act in favour of the complainant.
Delhi District Court Cites 17 - Cited by 0 - Full Document

Manjulaben H. Pandya vs Gurumukhdas Bhagwandas Vaswani on 16 December, 2022

10.1 In the present case, the registered post A.D. cover had not come back to the complainant with any of the endorsement. The evidence on record suggests that the address of the drawer was correct, subsequent summons of the Court was served on the very same address. The evidence produced by the brother of non- availability of the accused at the relevant time, in the very residential house, could not be considered as non-service of notice, since it was a dubious means adopted by the accused. The complainant had sent the notice through U.P.C. and the drawer of the cheque knew about the notice and therefore adopted an unfair means to contain non-service of notice, which would completely defeat the very prupose of the Act. If such defences are to be believed, then as observed in the case of C.C. Alavi Haji Vs. Palapetty Muhammed (supra), it could then be very easy for an unscrupulous and dishonest drawer of a Page 25 of 28 Downloaded on : Sat Dec 24 03:54:40 IST 2022 R/CR.A/2432/2008 JUDGMENT DATED: 16/12/2022 cheque to make himself scarce for sometime after issuing the cheque so that the requisite statutory notice can never be served upon him and consequently he can never be prosecuted. The course open to the accused - drawer to show his bonafide, where he claims of not to have received the notice sent by post, but received copy of the complaint with summons to have made payment of the cheque amount and on that basis could have submitted the Court to reject the complaint. While in the present case, the accused has failed to do so; thus the principle incorporated in section 27 of the General Clauses Act and even Section 114 of the Evidence Act would be attracted. The requirement of clause (b) of the proviso to section 138 stands complied with. Clause (c) of the proviso to section 138, thus gives a cause of action to the complainant, wherein the drawer of such cheque fails to make the payment of the said amount of money to the payee within fifteen days from the date of receipt of the said notice. Payee can file a complaint under Section 138 of the N.I. Act; when the cheque has been dishonoured on Page 26 of 28 Downloaded on : Sat Dec 24 03:54:40 IST 2022 R/CR.A/2432/2008 JUDGMENT DATED: 16/12/2022 the ground of insufficiency of the fund, for that, accused shall be deemed to have committed an offence and shall be punished for a term which may be extended to two years or with fine which may extend to twice the amount of the cheque or with both.
Gujarat High Court Cites 10 - Cited by 0 - G Gopi - Full Document

Cc No. 12045/18 Abul Faiz Azm vs Saleem Ahmad Khan Page No. 1/16 on 25 March, 2023

14. Adverting to the facts of the present case and in the light of the aforementioned landmark judgment of Hon'ble Supreme Court of India ie. "C. C. Alavi Haji Vs. Palapetty Mohd. & Anr." (Supra), this contention of the accused is not sustainable. Hence, the first, third, fourth and fifth ingredient of the offence under section 138 of the NI Act stands proved.
Delhi District Court Cites 21 - Cited by 0 - Full Document

Sri.Devaraj vs S/O Sri Doreswamy on 9 March, 2023

28. Further, though trial court has observed in para 3 of Judgment that notice has been sent and acknowledged by the accused. No such acknowledgment are found in the record or forthcoming on list of exhibits. The decision in Alavi Haji Vs. Palapetty Muhammed (supra) is applicable only when the notice is sent to the correct address. In the present case, as the notice has been sent to wrong address, the same is not duly served upon the accused. In fact, the cause of action for filing the complaint will arise only after issuance of notice and nonpayment of amount within 15 days of the notice. Sending notice is not an empty formalities. The same is mandatory under the statute. When the notice itself is not served or atleast not addressed to proper address, the accused cannot be held guilty for the offence. Therefore, the trial Court has wrongly held that the accused has not rebutted the presumption arising under section 139 of N.I.Act.
Bangalore District Court Cites 16 - Cited by 0 - Full Document
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