Case Note & Summary
The petitioner, Abdul Rehman M. Mulgand, filed a complaint under Section 138 of the Negotiable Instruments Act, 1881, against his brother, Mohammad Hashan Mulgand, alleging dishonour of a cheque for Rs. 79,800/-. The Judicial Magistrate, First Class, issued process against the accused on 25.10.2004. The accused filed a revision before the Sessions Judge, Margao, who allowed the revision and set aside the Magistrate's order on 11.5.2005, holding that the notice of demand was not properly served. The complainant then filed the present application, treated as a revision, before the High Court. The High Court observed that the notice was sent by registered post to the correct address of the accused and was returned with the endorsement 'unclaimed'. Relying on Section 27 of the General Clauses Act, 1897, the court held that service of notice is deemed to have been effected when sent by registered post to the correct address, and the addressee cannot avoid service by not collecting the letter. The court also noted that the accused had not disputed the receipt of the notice in his revision application. Therefore, the High Court allowed the revision, set aside the Sessions Judge's order, and restored the Magistrate's order issuing process against the accused.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Notice of Demand - Service of Notice - Where notice is sent by registered post to the correct address of the accused, it is deemed to be served under Section 27 of the General Clauses Act, 1897, even if the postal cover is returned with endorsement 'unclaimed' or 'refused'. The learned Sessions Judge erred in holding that the notice was not served merely because the complainant did not examine the postman. The Magistrate's order issuing process was proper. (Paras 2-5)
Issue of Consideration
Whether the learned Sessions Judge was justified in setting aside the order of the Magistrate issuing process under Section 138 of the Negotiable Instruments Act, 1881, on the ground that the notice of demand was not properly served on the accused.
Final Decision
The High Court allowed the revision, set aside the order of the Sessions Judge dated 11.5.2005, and restored the order of the Judicial Magistrate, First Class dated 25.10.2004 issuing process against the accused under Section 138 of the Negotiable Instruments Act, 1881.
Law Points
- Notice sent by registered post to correct address is deemed served under Section 27 of General Clauses Act
- 1897
- even if returned unclaimed
- Section 138 Negotiable Instruments Act
- 1881
- presumption of service
- revision against order of Sessions Judge setting aside process
Case Details
2005 LawText (BOM) (10) 32
Criminal Miscellaneous Application No.157 of 2005
Shri Shivanand Singbal for petitioner/complainant, Shri B.S. Assunde for respondent no.1, Shri S.N. Sardessai, Public Prosecutor for respondent no.2
Mr. Abdul Rehman M. Mulgand
Shri Mohammad Hashan Mulgand, State through Public Prosecutor, High Court, Panaji
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Nature of Litigation
Criminal revision against order of Sessions Judge setting aside process issued under Section 138 of Negotiable Instruments Act, 1881.
Remedy Sought
The complainant sought restoration of the Magistrate's order issuing process against the accused for dishonour of cheque.
Filing Reason
The Sessions Judge set aside the Magistrate's order on the ground that notice of demand was not properly served on the accused.
Previous Decisions
Judicial Magistrate, First Class issued process on 25.10.2004; Sessions Judge allowed revision and set aside process on 11.5.2005.
Issues
Whether the notice of demand under Section 138 of the Negotiable Instruments Act, 1881, was properly served on the accused when sent by registered post to the correct address and returned unclaimed.
Submissions/Arguments
Petitioner argued that notice was sent by registered post to the correct address and was deemed served under Section 27 of the General Clauses Act, 1897.
Respondent argued that notice was not served as the postal cover was returned unclaimed and the postman was not examined.
Ratio Decidendi
When a notice is sent by registered post to the correct address of the addressee, it is deemed to be served under Section 27 of the General Clauses Act, 1897, even if the postal cover is returned with an endorsement 'unclaimed' or 'refused'. The addressee cannot avoid service by not collecting the letter. The complainant is not required to examine the postman to prove service.
Judgment Excerpts
The notice was sent by registered post to the correct address of the accused and was returned with the endorsement 'unclaimed'. Under Section 27 of the General Clauses Act, 1897, service of notice is deemed to have been effected when sent by registered post to the correct address.
The learned Sessions Judge erred in holding that the notice was not served merely because the complainant did not examine the postman.
Procedural History
Complainant filed complaint under Section 138 NI Act before Judicial Magistrate, First Class, who issued process on 25.10.2004. Accused filed Criminal Revision Application No.12/05 before Sessions Judge, Margao, who allowed revision and set aside process on 11.5.2005. Complainant filed Criminal Miscellaneous Application No.157/2005 before High Court, treated as revision, which was allowed on 5.10.2005.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
- General Clauses Act, 1897: 27
