Allahabad High Court: Vivek Varma, J., held that factum of disputed service of notice requires adjudication on the basis of evidence and the same can only be done by the trial court.
In the instant matter, OP had filed a complaint under Section 138 of the Negotiable Instruments Act against the applicant as the cheques issued by the applicant was returned by the bank with the remark “fund insufficient”.
A legal notice in view of the above-stated circumstances was sent. There is a presumption of service of the said notice and despite service of notice, the applicant did not make any payment nor sent any reply.
Analysis, Law and Decision
Bench stated that Section 138 NI Act was considered by the Supreme Court in C.C. Alavi Haji v. Palapetty Muhammed, (2007) 6 SCC 555, wherein the presumption under Section 114 of the Evidence Act and Section 27 of the General Clauses Act was enunciated.
The above-stated case was followed by the Supreme Court in Ajeet Seeds Limited v. K. Gopala Krishnaiah, (2014) 12 SCC 685 and held that absence of averments in the complaint about service of notice upon the accused’s is the matter of evidence.
Noting the settled legal position in the above cases, Bench expressed that the complaint cannot be thrown at the threshold even if it does not make a specific averment with regard to service of notice on the drawer on a given date. Complaint, however, must contain basic facts regarding the mode and manner of issuance of notice to the drawer of the cheque.
Supreme Court’s decision in Subodh S. Salaskar v. Jayprakash M. Shah, (2008) 13 SCC 689, was relevant to the present matter.
High Court elaborated that, notice being sent on 19-09-2012, if the presumption of service of notice within a reasonable time is raised, shall be deemed to have been served, at the best within a period of 30 days from the date of issuance. Applicant was required to make payment in terms of the said notice within 15 days thereafter.
The factum of disputed service of notice requires adjudication on the basis of evidence and the same can only be done and appreciated by the trial court and not by this Court under the jurisdiction conferred by Section 482 CrPC.
However, since the complaint case was pending since the year 2014, as per the mandate of the Act the proceedings under Section 138 NI Act ought to be concluded within 6 months.
Hence, the Court below was directed to expedite the hearing of the complaint case. [Anil Kumar Goel v. State of U.P., 2021 SCC OnLine All 410, decided on 7-06-2021]
Advocates before the Court:
Counsel for Applicant:- Anand Prakash Dubey, Pradeep Kumar Rai, Saurabh Trivedi
Counsel for Opposite Party:- Govt. Advocate Vikrant Rana