Case-3 -  
Negotiable Instruments Act,1881, Section 138(b) Statutory Notice., 

The complainant got issued a statutory notice (Ex.P6) to the accused calling upon him to pay the amounts due under the bounced cheque within 15 days from the date of receipt of the statutory notice and the same was sent by RPAD & UCP. 

** The notice sent by registered post was returned unserved with a postal endorsement 'unclaimed', while, the notice sent under certificate of posting was not returned and it is deemed to have been served on the accused.

The learned counsel for the accused has vehemently contended that no statutory notice was received by the accused from the complainant and therefore, the complainant failed to comply the mandatory provision as required U/s.138 (b) of  NI Act to issue prior notice to the accused, which is condition precedent and thereby, the complainant denied the opportunity to the accused to pay the amount covered by the cheque within the stipulated period provided by the act and therefore, the accused cannot be prosecuted for the offence punishable U/s.138 of the Negotiable Instruments Act. 

The counsel for the accused further contended that the notice sent under certificate of posting cannot be deemed service of the notice as such service is not recognized by the General Clauses Act.

In support of the said contentions, the learned counsel for the accused has relied upon the following decisions:

i) The decision of Hon'ble Supreme Court rendered in

State of Maharashtra Vs.Rashid Babu Bhai Mulani reported in

 

2006 AIR SCW 162, wherein it was observed that--

“The department of posts may have to evolve some procedure where by a record in regard to the issuance of certificates is regularly maintained showing a serial number, date, sender's name and addressee's name to avoid mis-use. In the absence of such record, a certificate of posting may be of a very little assistance, where the dispatch of such communications is disputed or denied.”

ii) The decision of our Hon'ble High Court rendered in

Yadlapalli Satyam Vs.K.Seetharamanjaneyulu and another

reported in 2005 (1) ALD (Crl.) 473 (AP), wherein it was held

that--

“The complainant did not adduce any evidence to show that accused was present at address and he managed to get endorsement from postal authorities that he was absent for 7 days. On the other hand, the accused examined VAO to show that he was absent during that period.

Purpose of statutory notice to give opportunity to the accused to pay the amount covered by cheque. Unless there is a proof that there was service of notice or that endorsement was managed by the accused, it cannot be said that there was valid service of notice”.

            iii)  In another decision rendered by our Hon'ble High Court in 

A.Sudershan V.Mannan (Shabir) and another 

reported in 1997 (1) ALD (Crl.) 795 (AP) 

wherein it was held that--

“Registered notice sent to the accused was returned with a postal endorsement “Party continuously absent for seven days” - does not amount to service under the Negotiable Instruments Act. It cannot be treated as constructive notice”.

On the other hand, the learned counsel for the complainant has argued that the complainant dispatched Ex.P6 statutory notice to the accused on his correct address by registered post with acknowledgement due and also under certificate posting and the accused received the statutory notice under certificate of posting and the notice sent by registered post was returned unserved with a postal endorsement 'unclaimed' and therefore, the said notice is deemed to have been served on the accused in view of the presumption U/s.27 of the General Clauses Act.

      A perusal of cause title of Ex.D1 order, it does not contain the name of the father of the accused, even the age of the accused and those columns mentioned as “son of not known”, “aged major” like that and in those circumstances, it cannot be said that the address of the accused mentioned in Ex.D1 order is the correct address of the accused. 

It is already stated supra that the accused did not take steps to file the documentary proof to show his correct residential address in the relevant period of December, like house hold supply card, election identity card, residential certificate, employee identy card, or any other proof of residence issued by the competent authority. It is not out of place to mention here that the accused opened his account with .... Bank Ltd.,.... branch, and the said Bank Manager by name ...... was examined as PW3 and he brought the statement of the account of the accused maintained by ...Bank Ltd., .... branch and the same was marked as Ex.P10, wherein the address of the accused was mentioned and the said address is similar to the address mentioned in Ex.P6 statutory notice. 

          Even though, the accused disputed his address on Ex.P6 statutory notice, but the same address only was furnished by the accused in his personal bond executed before the court. In these circumstances, it cannot be said that the complainant dispatched Ex.P6 statutory notice to the accused on his wrong address.

In respect of service of statutory notice on the drawer of the cheque, our Hon'ble Supreme Court laid down the law in

CC.Alavi Haji Vs.Palapetti Muhammed and another 

reported in 2007 Crl.L.J. 3214, 

wherein it was held that --

“When the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of the notice in terms of Clause (b) of Proviso to Section 138 of the Negotiable Instrument Act stands complied with. When a notice is sent by registered post and it is returned with a postal endorsement 'refused' or 'not available in the house' - 'house locked' or 'shop closed' or 'addressee not in station' due service has to be presumed U/s.27 of the General Clauses Act.”

 ii) In another decision of our Hon'ble Supreme Court rendered in 

K. Bhaskaran  Vs.  Sankaran Vaidhyan Balan and another 

reported in 2000 (1) ALT (Crl.) 42 (SC), 

wherein it was held that:-

“ where sender of notice dispatched by post with correct address notice must be deemed to have been served on sendee unless he rebuts it. Notice returned as unclaimed is deemed to have been served on the drawer of the cheque in view of the presumption U/s.27 of the General Clauses Act.”

iii) Moreover, on this aspect, our Hon'ble High Court rendered a decision in 

Aparna Agencies, Hyderabad 

Vs. 

P.Sudhakar Rao & another reported in 1999(5) ALD 16

wherein it was held that --

 

“Notice of dishonour sent to the drawer of the cheque to his correct address by registered post. Registered notice returned with an endorsement 'addressee out of station' - 'door locked for 7 days'. Held the notice is deemed to have been served on the addressee in view of the presumption under Section 27 of the General Clauses Act”

iv) In another decision of our Hon'ble High Court rendered in Nirdosh Enterprises, Hyderabad Vs.State of A.P and another reported in 2004 (2) ALD (Crl.)298 (AP), 

wherein it was held that--

“ When once the notice has been sent to the accused to his correct address by registered post, the complainant is entitled to take the aid of Section 27 of the General Clauses Act and plead that notice sent to the accused is deemed to have been served on him. ”

      In the instant case, the accused merely claimed that the complainant dispatched statutory notice to him on his wrong address. But the accused did not furnish his correct address along with proof documents on the relevant period. On the other hand, the accused as DW1 in his evidence stated at one stage that he has not received any statutory notice from the complainant on his residential address or on his official address in another stage, he claimed that he has not stayed in the given address in Ex.P6 statutory notice, during the relevant period. This part of testimony made by DW1 clearly reveals that the address given in Ex.P6 statutory notice is not his wrong address, but he has not stayed in the said address during the relevant period. 

On this aspect, our Hon'ble High Court rendered a decision in 

N.Narsingarao Vs.Srinivasa Chary and another 

reported in 2010 (2) ALD (Crl.) 651 (A.P.) 

wherein it was held that--

“Notice sent not only by registered post, but also by courier service and under certificate of posting. Registered notice addressed to the accused returned with an endorsement “Addressee left and new address not known . Held that there is a valid compliance of said notice in issuing of notice by the complainant”

As per the material available on the record, it is not difficulty to say that the complainant dispatched Ex.P.6 statutory notice to the accused on his correct address and the postman visited the said address on 29.12.2008 and 30.12.2008 and later the postman concerned returned the registered post cover with an endorsement 'not served'. As per the aforesaid decision rendered by our Hon'ble Supreme Court, the mandatory requirement of issue of notice in terms of Clause (b) of Proviso to Section 138 of the Negotiable Instrument Act stands complied with, when the notice is sent to the drawer of the cheque on his correct address.

Therefore, it can be concluded that the complainant issued a constructive notice to the accused as required U/s.138 (b) of the Negotiable Instruments Act.