Case Note & Summary
The appellant-complainant, Anil Gulabrao Khairkar, filed a criminal appeal against the judgment of the Special Court for the Negotiable Instruments Act at Nagpur dated 21/02/2006 in Criminal Case No.1220/2005, which acquitted the respondent-accused, Ganesh Yadaorao Bobade, for the offence under Section 138 of the Negotiable Instruments Act, 1881. The complainant alleged that a cheque issued by the accused was dishonoured. The complainant sent a statutory notice under clause (b) of the proviso to Section 138 by Registered Post Acknowledgment Due to the correct address of the accused. The postal authority returned the envelope with the endorsement 'not claimed'. The learned Magistrate refused to consider this as valid service, also noting that the envelope was in an opened condition and that the complainant had not examined the postman. However, the Magistrate gave findings on other issues in favour of the complainant. The sole issue in appeal was the validity of service of notice. The High Court held that when a notice is sent by registered post to the correct address, there is a presumption of service under Section 27 of the General Clauses Act, 1897. The endorsement 'not claimed' amounts to refusal, and the addressee cannot avoid liability by not claiming the notice. The burden shifts to the accused to rebut the presumption. The condition of the envelope and non-examination of the postman are not fatal. The High Court allowed the appeal, set aside the acquittal, and remanded the case to the trial court for fresh decision on merits, directing the parties to appear on 21/10/2019.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Notice of Demand - Service of Notice - 'Not Claimed' Endorsement - The complainant sent notice by Registered Post Acknowledgment Due on correct address, but postal authority returned it with remark 'not claimed'. The Magistrate held it was not valid service and acquitted accused. On appeal, the High Court held that when a notice is sent by registered post to the correct address, it is deemed to be served under Section 27 of the General Clauses Act, 1897, and the addressee cannot avoid liability by refusing to accept or not claiming the notice. The burden shifts to the accused to rebut the presumption. The acquittal was set aside and the case remanded for fresh decision on merits. (Paras 1-6) B) Negotiable Instruments Act - Dishonour of Cheque - Notice of Demand - Open Envelope - The Magistrate noted that the envelope produced by complainant was in opened condition. The High Court held that the condition of the envelope is not material if the notice was sent to correct address and returned with 'not claimed' endorsement. The court must presume service unless accused rebuts. (Para 2) C) Negotiable Instruments Act - Dishonour of Cheque - Notice of Demand - Examination of Postman - The Magistrate faulted complainant for not examining the postman. The High Court held that examination of postman is not mandatory when the postal endorsement 'not claimed' is on the envelope. The presumption under Section 27 of the General Clauses Act applies. (Para 2)
Issue of Consideration
Whether service of notice by registered post returned with endorsement 'not claimed' constitutes valid service under clause (b) of the proviso to Section 138 of the Negotiable Instruments Act, 1881.
Final Decision
The appeal is allowed. The judgment of acquittal dated 21/02/2006 passed by the Special Court for NI Act, Nagpur in Criminal Case No.1220/2005 is set aside. The case is remanded to the trial court for fresh decision on merits. The parties are directed to appear before the trial court on 21/10/2019.
Law Points
- Deemed service of notice under Section 138 NI Act
- 'not claimed' as valid service
- presumption of service under Section 27 General Clauses Act
- burden on accused to rebut presumption
