Case Note & Summary
The case involves a complaint under Section 138 of the Negotiable Instruments Act, 1881, filed by M/s. General Detergents (the appellant/complainant) against Arun H. Merchant and others (the respondents/accused). The appellant alleged that on 2nd November 1998, the respondent issued a cheque for Rs. 1,00,000 in favour of the appellant, which was dishonoured upon presentation. The appellant sent a notice of dishonour to the respondent at an address in Mumbai, but the respondent claimed he was not residing there at the time. The trial court acquitted the respondents, holding that the notice was not properly served. The appellant filed an application for leave to appeal against the acquittal. The High Court, after hearing the parties and perusing the record, dismissed the application. The court held that the complainant failed to prove that the notice was sent to the correct address of the accused. The presumption of service under Section 27 of the General Clauses Act, 1897 was rebutted by the accused, who showed that he was not residing at the address at the relevant time. The court found no perversity in the trial court's findings and declined to interfere with the acquittal.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Notice under Section 138 - Service of Notice - The complainant must prove that the notice was sent to the correct address of the accused. In this case, the notice was sent to an old address, and the complainant failed to show that the accused was residing at that address at the time of service. The presumption of service under Section 27 of the General Clauses Act, 1897 is rebuttable, and the accused successfully rebutted it by showing that he was not residing at the address. (Paras 1-15) B) Criminal Procedure Code - Appeal against Acquittal - Scope of Interference - The appellate court will not interfere with an order of acquittal unless the findings are perverse or based on no evidence. The trial court's finding that the notice was not properly served was based on evidence and cannot be disturbed. (Paras 1-15)
Issue of Consideration
Whether the complainant had proved that the notice of dishonour was sent to the correct address of the accused and whether the service of notice was valid under Section 138 of the Negotiable Instruments Act, 1881.
Final Decision
The High Court dismissed the application for leave to appeal, upholding the trial court's acquittal of the respondents.
Law Points
- Notice under Section 138 of Negotiable Instruments Act must be sent to correct address of accused
- Service of notice must be proved by complainant
- Presumption of service under Section 27 of General Clauses Act is rebuttable
