Who will prove that notice was not received in Sec 138 case
Whether burden of proof will be on accused to prove that notice was not received by him in case of dishonour of cheque?* In my considered view, in the present case, it is not as if no legal notice was issued by the complainant to the accused. The legal notice was duly issued and as per report on the receipt, the same could not be served upon him because the accused was not available despite the postal authorities attempting to serve him on more than one occasions.
Incidentally, a perusal of the statement made by the accused under Section 313 Cr. P.C. will demonstrate that he has admitted the factum of legal notice having been issued by the complainant to him. Even otherwise, had his conduct been bonafide, then after the complaint was filed in the Court by the complainant under Section 138 of the Negotiable Instruments Act, 1881, nothing stopped the accused from depositing the amount in issue before the learned trial Court. Further, in my considered view, the legal position is that the drawer of the cheque makes himself liable for prosecution under Section 138 of the Negotiable Instruments Act, 1881 in case he fails to make the payment within fifteen days of the receipt of the notice given to him by the drawee.
Thus, the accrual of cause of action is in fact the failure on the part of the drawer of the cheque to pay the amount after receipt of the notice which gives rise to the cause of action to the complainant to file complaint within the statutory period prescribed under the Negotiable Instruments Act, 1881. However, there may be unscrupulous persons/drawers who may manage to get incorrect postal endorsements to defeat the claim of the drawee. The moot issue is as to whether in such circumstances a drawee will be without remedy or not. In my considered view, such like situation is duly covered by the principles incorporated in Section 27 of the General Clauses Act, which apply to a notice sent by post and it would be for the drawer to prove that it was not really served and that he was not responsible for such non-service.
- In V. Raja Kumari Vs. P. Subbarama Naidu and another
(2004) 8 Supreme Court Cases 774 dealing with the case where notice cannot be served on account of the fact that door of the house of the drawer was found locked, the Hon’ble Apex Court has held that the principles incorporated in Section 27 of the General Clauses Act will apply in such like situation and it will be for the drawer to prove that he was not really served and he was not responsible for such service. IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No.: 30 of 2016 Date of Decision: 27.05.2016 Sandeep Walia Vs. Sanjeev Dulta Coram: Mr. Justice Ajay Mohan Goel, Judge Citation: 2016
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