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
Mr. Justice Ajay Mohan Goel, Judge