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.

  1. 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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