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CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 2979 OF 2023
Sou. Usha @ Rashmi Ramesh Bhadre
Age – 63 Years, Occu. - Housewife
R/o-197, B-Ward, Mahalaxmi Mandir, Kolhapur ...Petitioner
Vs.
1. Shri Raviraj Yuvraj Chavan
Age 40 years, Occ- Business
R/o-1553, B Ward, Jarag Galli, Mangalwar Peth, Kolhapur
2. The State of Maharashtra ...Respondents
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Mr. Anand Patil Advocate for the Petitioner
Mr. Zishan Quazi Advocate for the Respondent
Mr. H. J. Dedhia APP for the Respondent-State
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ORAL JUDGMENT
1. Heard learned Advocate for the Petitioner-Complainant and learned Advocate for the Accused-Respondent No. 1.
2. The only issue arisen in this petition is “whether it can be said that the Complainant has complied with the provisions of Section 138 KSHITIJ YELKAR (b) of the Negotiable Instruments Act relating to service of notice”. Though the notice dated 05.06.2018 was sent, it returned back with a remark ‘left address’. A copy of the envelope is on page no. 29. In fact the issue is no more res integra as it is already decided in case of C.C. Alvai Haji Vs. Palapetty Muhammed and Anr.[1] Still Learned Additional Session Judge, Kolhapur falls pray to the arguments advanced on behalf of accused and set aside the process on 25.04.2023. Case put up by parties
3. According to the Complainant, the notice was sent on address which he found from the Aadhar card of the accused. A copy of the Aadhar card is on page no. 28. He has further pleaded in the complaint, in para no. 5 that in fact the accused is residing at the same address, but deliberately he has not accepted the notice.
4. Whereas it is the contention of the accused that “he has already left that address and the address is incorrect and hence the provision of Section 138 (b) of the Negotiable Instruments Act are not complied with”. The learned Advocate for the Respondent-accused relied upon the phrase ‘receipt of the notice’ used in Section 138 (c) of the 1 2008 (1) Mh. L.J. Negotiable Instruments Act.
5. So the issue is “which version to be accepted at pre trial stage.” The accused took a chance before Revisional Court. He was successful in convincing the Court that there was no proper service; that is why the Court of the Additional Sessions Judge, Kolhapur has set aside the process and the complaint was dismissed. The correctness of the order dated 25.04.2023 is challenged by way of this petition. Submissions
6. The learned Advocate Shri Patil for the Petitioner relied upon the observations in following judgments:-- (a) case of C.C. Alvai Haji Vs. Palapetty Muhammed and Anr.2. (b) case of M/s. Indo Automobiles Vs. M/s Jai Durga Enterprises and Ors.3. According to learned Advocate Mr. Patil, the revisional Court has not correctly appreciated the ratio laid down in above said judgments.
7. Whereas learned Advocate for the Respondent No. 1 supported the order and according to him, when the Complainant claims that 2 2008 (1) Mh. L.J.
both are friends, he ought to be aware about correct address of the accused. He relied upon the observations in case of Shri Mangesh Satish Vairat and Ors. Vs. Smt. Sangita Tanaji Nanavare and Anr. passed by this Court in First Appeal No. 234 of 2020 dated 06.07.2023. It is no doubt true in case of Mangesh Vairat (Supra), learned Single Judge has referred to the observation made by the Hon’ble Supreme Court in case of C.C. Alvai Haji (supra) in para NO. 4. In that matter, the issue was about service of the summons. The learned Judge has not accepted the service as proper (envelope returned back with remark ‘left address’) and given necessary directions. These observations will not be helpful to the Respondent for two reasons:-
(i) The specific provisions of the Section 138 of the
(ii) This was direction given at the preliminary stage at the time of the service of the issuance of the summons. It cannot be said ‘any law is laid down’. Observations about C.C. Alvai Haji
8. Now the issue is whether the revisional Court has correctly applied the ratio in the case of C.C. Alvai Haji (supra), where a similar issue was involved. On facts, revisional court observed:-- “postal endorsement is that the address is changed. When such was the endorsement it was the duty of the complainant firstly to search out the address of the accused and redeposit the said cheque within the period of 6 months of its issuance and reissue the notice of dishonour had the cheque been dishonoured again”.
9. The learned Additional Sessions Judge considered the observations in case of C.C. Alvai Haji (supra) as “ giving a notice to the drawer before filing complaint is mandatory requirement”. On this background, the Learned Additional Session Judge casted a responsibility on complainant to trace out the address and hence set aside the process. On this background, it will be relevant to consider the observations of Supreme Court. Observations in C.C. Alvai Haji
10. Three judges bench of Hon’ble Supreme Court has decided the issue referred to it by way reference. Earlier Supreme Court has already interpreted the law on the point of ‘sending of notice’ and when it can be said that the Complainant has complied with the provisions of Section 138(b) of Negotiable Instruments Act. This issue was decided in following two cases:a) K. Bhaskaran Vs. Sankaran Vaidhyan Balan and Anr.[4] and b) D. Vinod Shivappa Vs. Nanda Belliappa[5]. However, referring bench was of the view that in case of D. Vinod Shivappa (supra), the bench has not considered the provisions of Section 114 of the Indian Evidence Act and hence reference was made to larger bench.
11. The issue which was decided by larger bench finds place in para no. 2. In nutshell the issue was:- “when there are no averments in the complaint about role played by the accused about nonreceipt of notice or that the accused has deliberately avoided the notice and in such a case whether there is sufficient compliance of sending of notice”.
12. The Hon’ble Supreme Court has considered:a) the provisions of Section 114 of Indian Evidence Act, b) the provisions of Section 27 of General Clauses Act and c) also referred the book “Maxwell’s Interpretation of Statutes”. The provisions relating to ‘giving of notice’ has to be given liberal interpretation. It is as follows:- “The context envisaged in Section 138 of the Act invites a liberal interpretation for the person who has the statutory obligation to give notice because he is presumed to be the loser in the transaction and it is for his interest the very provision is made by the Legislature. The words in clause (b) of the proviso to Section 138 shows that the payee has statutory obligation to ‘make a demand.( para no.7).
13. In respect of presumption under Section 27 of General Clauses Act, it is observed:- “It is, thus, trite to say that where the payee dispatches the notice by registered post with correct address of the drawer of the cheque, the principle incorporated in Section 27 would be attracted; the requirement of clause (b) of proviso to Section 138 stands complied with -------(para no. 10) (emphasis supplied). Presumption under Section 114 and Section 27
14. The Hon’ble Supreme Court has quoted the provisions of Section 114 of Indian Evidence Act (para 12). It talks about presumption:- “When applied to communications sent by post, Section 114 enables the court to presume that in the common course of natural event, the communication would have been delivered at the address of the addressee. But the presumption that is raised under Section 27 is far stronger presumption. Further, while Section 114 of the Evidence Act refers to a general presumption, Section 27 refers to a specific presumption. Necessity of pleadings
15. About necessity of pleading certain facts, it is observed:-- “in view of presumption under Section 27 when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. (para 14).
16. The Court is fully conscious of right of the accused and hence observed:-- “unless and until contrary is proved by the addressee, service of notice is deemed to have been effected”. If the notice is returned back as unserved, the Supreme Court observed:-- “this Court has already held that when a notice is sent by registered post and is returned with a postal endorsement ‘refused’, or ‘not available in the house’ or ‘house/shop locked’ or ‘addressee not in station’, due service has to be presumed”. Finally Supreme Court observed:-- “it is therefore manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved” (para 14).
17. After liberally construing the provisions, Supreme Court has even opined to reject the contention about non-service of notice, if he fails to pay the amount of the cheque within 15 days from the date of receipt of notice. Any other interpretation of the proviso would defeat the very object of the legislation (para 17). Observations about facts
18. The learned Advocate for the Respondent invited my attention to the observations in para no. 14 from the judgment of C.C. Alvai Haji (supra). Some of the contingencies about non-receipt of the notice are referred. It includes, refused, not available in the house, house locked, shop closed or addressee not in station. Even though those contingencies are referred in para no. 14, the interpretation that “the learned Advocate for the Respondent intends to advance” is not that interpretation. What is observed is “when the notice is sent by Registered post and returned with those remarks, due service has to be presumed”. It does not support the submission advanced on behalf of the Respondent-Complainant.
19. On facts, Supreme Court observed there is sufficient compliance of the provisions of Section 138(b) when the envelope returned back with remark ‘out of station’ (para 18). About findings
20. Even though there is elaborate discussion about the provisions of relevant Acts, the Court of Additional Session Judge (who is supposed to have long experience prior to occupying that post) observed “the complainant ought to have taken pains to find out the new address of the accused”. The Revisional Court observed “initial address of the accused was Mangalwar Peth, Kolhapur (address appearing on the notice and complaint) and the present address is Sambajinagar, Kolhapur”. However, it is the case of accused that his current address is at Sambajinagar.
21. However, the Complainant has taken the address from Aadhar card and when that is address is correct, the Complainant was justified in sending notice on that address and merely because the envelope has returned back with remark ‘left address’ will not ensure to the benefit of the accused. Revisional Court has overlooked the interpretation given by Supreme Court and those findings need to be set aside. The Revisional Court has overlooked the pleadings in the complaint. Even though it is necessary to plead ‘about deemed service of notice’ in the complaint (as held by Supreme Court), the Complainant has pleaded that ‘deliberately accused has avoided the service of the notice’. The interpretation of Section 138(b) of the Negotiable Instruments Act comes in favour of the Complainant. It cannot be said that provision of Section 138(b) of the Negotiable Instruments Act were not complied with. Sending of the notice is properly done.
22. The phrase ‘receipt of the notice’ is used for the purpose of the computation of the limitation. It cannot be far stretched to say that the Complainant has to show that the notice is served. At the time of the issuance of the process, there was sufficient material available before the trial Court to issue process. These are my prima-facie observations. While deciding the petition, the Revisional Court has not properly applied the ratio laid down in case of C.C. Alvai Haji (supra). The order of the revisional Court needs to be set aside.
23. It is made clear that during the trial, the Respondent – accused is at liberty to raise all the grounds which are available. With these observations, the Petition needs to be allowed. Hence, the order:- ORDER
(i) The Writ Petition is allowed.
(ii) The order passed by the Court of the Additional
Sessions Judge, Kolhapur, dated 25.04.2023 in Criminal Revision Application No. 173 of 2018 thereby dismissing the complaint is set aside.
(iii) The complaint is restored.
(iv) Both the parties are directed to appear before the Court of the JMFC, Kolhapur on 11.08.2025.
(v) The learned trial Court is at liberty to proceed in the matter as per the Law.
24. With these observations, the Writ Petition is disposed of. [S. M. MODAK, J.]