Case Note & Summary
The dispute arose from a criminal complaint filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 alleging dishonour of a cheque. The complainant sent a statutory demand notice dated 05.06.2018 by registered post to the accused's address obtained from his Aadhar card. The postal envelope was returned with the endorsement 'left address'. The complainant pleaded in paragraph 5 of the complaint that the accused was actually residing at the same address but deliberately refused to accept the notice. The Magistrate had issued process against the accused. The accused challenged the order before the Additional Sessions Judge, Kolhapur, which by order dated 25.04.2023 set aside the process and dismissed the complaint, holding that there was no proper service of notice because the envelope was returned with 'left address' and the complainant should have traced the accused's new address. Aggrieved, the complainant filed Criminal Writ Petition No. 2979 of 2023 before the Bombay High Court. The core legal issue was whether the complainant had complied with the requirement of Section 138(b) of the Negotiable Instruments Act regarding service of demand notice when the notice sent to the drawer's Aadhar card address was returned with postal remark 'left address'. The complainant contended that the address was taken from the Aadhar card and was correct, and that the accused deliberately avoided the notice. The accused argued that he had already left that address and the address was incorrect, hence there was no compliance with Section 138(b). The accused also relied on the phrase 'receipt of the notice' in Section 138(c) and on the decision in Mangesh Vairat. The High Court examined the Supreme Court's decision in C.C. Alavi Haji v. Palapetty Muhammed, which had settled the law on service of notice under Section 138. The Supreme Court held that when a notice is sent by registered post to the correct address of the drawer, the presumption under Section 27 of the General Clauses Act, 1897 arises, and the requirement of clause (b) of proviso to Section 138 stands complied with. The presumption under Section 27 is far stronger than the general presumption under Section 114 of the Indian Evidence Act. The Supreme Court also held that it is unnecessary to aver in the complaint that service of notice was evaded or that the accused had a role to play in the return of the notice unserved. Postal endorsements such as 'refused', 'not available in the house', 'house locked', 'addressee not in station' give rise to due service presumption. The High Court found that the revisional court misapplied the ratio of C.C. Alavi Haji and erred in casting a duty on the complainant to trace the new address. The observations in Mangesh Vairat were distinguished as relating to service of summons, not statutory notice under Section 138. The High Court concluded that the complainant was justified in sending notice to the Aadhar card address, and merely because the envelope returned with 'left address' did not benefit the accused. Accordingly, the High Court held that the revisional court's findings needed to be set aside and allowed the writ petition, thereby restoring the complaint.
Headnote
A) Negotiable Instruments - Dishonour of Cheque - Service of Statutory Notice - Negotiable Instruments Act, 1881, Sections 138, 138(b), 138(c) - The complainant sent demand notice by registered post to the drawer's address obtained from his Aadhar card; envelope returned with postal endorsement 'left address'. The High Court held that such service must be presumed valid under Section 27 of the General Clauses Act, 1897, and the revisional court erred in requiring the complainant to trace the accused's new address. Held that there was sufficient compliance with Section 138(b) (Paras 2-5, 8-9, 20-21). B) Evidence - Presumptions - Specific Presumption under General Clauses Act - General Clauses Act, 1897, Section 27; Indian Evidence Act, 1872, Section 114 - The Supreme Court in C.C. Alavi Haji held that the presumption under Section 27 of the General Clauses Act is far stronger than the general presumption under Section 114 of the Indian Evidence Act. When the payee dispatches notice by registered post with correct address of the drawer, the requirement of clause (b) of proviso to Section 138 stands complied with, and no further averment of deemed service is necessary (Paras 13-16). C) Criminal Procedure - Revisional Jurisdiction - Service of Summons vis-à-vis Statutory Notice - Negotiable Instruments Act, 1881, Section 138(b) - Observations in Mangesh Vairat were not applicable as they concerned service of summons at preliminary stage, not statutory demand notice under Section 138 NI Act, and no law was laid down. The revisional court erroneously required the complainant to trace the accused's new address and re-issue notice (Paras 7, 20-21). D) Statutory Interpretation - Negotiable Instruments - Liberal Construction in Favour of Payee - Negotiable Instruments Act, 1881, Section 138 - The Supreme Court opined that the context of Section 138 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. Any other interpretation would defeat the very object of the legislation (Paras 12, 17).
Issue of Consideration
Whether the complainant complied with Section 138(b) of the Negotiable Instruments Act, 1881 regarding service of demand notice when the notice sent to the accused's Aadhar card address was returned with postal endorsement 'left address'.
Final Decision
The High Court held that service of statutory demand notice under Section 138(b) of the Negotiable Instruments Act was sufficient when sent to the accused's Aadhar card address and returned with endorsement 'left address', relying on C.C. Alavi Haji. The revisional court's order dated 25.04.2023 setting aside process and dismissing complaint was erroneous and was set aside; the complaint was restored.
Law Points
- When notice sent by registered post to correct address
- due service presumed under Section 27 General Clauses Act
- Specific presumption under Section 27 stronger than Section 114 Evidence Act
- Complainant need not plead deemed service
- Postal endorsement 'left address' cannot defeat notice if address taken from Aadhar card
- Revisional court cannot require complainant to trace accused's new address
- Liberal interpretation to protect payee
