ABHINAV CHATURVEDI SHRI ASHOK CHATURVEDI Vs. MANGALIK CHEMICALS

JUDGEMENT

(1.) The present writ petition relates to a complaint under Section 138 Negotiable Instruments Act. The basic issue raised before the Court is the non-compliance of mandatory process of serving of the notice upon the accused/petitioner.

(2.) Heard S/Sri V.M. Zaidi, Anil Bhushan, Gautam Chaudhary, learned counsel for the petitioner, Sri V.P. Srivastava, Seem a Agarwal, Mayank Agarwal, learned counsel for the respondent concerned, learned A.G.A. for the State and perused the record.

(3.) The issuance of cheque of a sum of Rs. 6,09,99.31 and its dishonour from the bank concerned due to insufficient amount in the account of the drawer/petitioner is not in dispute. The drawer/petitioner had an information that the cheque was dishonoured. The registered notice appeared to have been sent on the correct address of the petitioner. Such address is also undisputed. The endorsement of the postal department and the notice to the effect approached/visited several times i.e. on 28.1.2003, 29.1.2003, 30.1.2003, 31.1.2003 & 01.2.2003, the receiver could not be found. {Bar bar jane per praptkarta nahin mila). The copy of the notice with the endorsement is available on the record. The petitioner appeared to have an information of the notice. A possibility of the avoidance of the receipt of the notice cannot be ruled out. The petitioner sought his discharge on the ground that there was no service of such notice upon him cannot be accepted at this stage. In this continuation it may be relevant to point out that in case of V. Raja Kumari v. P. Subbarama Naidu and Anr. reported in 2005 Supreme Court Cases (Cri) 393 a registered notice was sent to the accused and it was returned with the endorsement that the door of the house was locked and on this ground the trial court dismissed the complaint presuming that notice was not served, but the order was set-aside by the Hon'ble High Court and the same was confirmed by the Hon'ble Apex Court. In view of the matters, the courts below did commit no wrong in refusing his prayer. The observations made by the Hon'ble Supreme Court is applicable to the facts and circumstances of the case which is hereby reproduced. Negotiable Instruments Act, 1881 - Sections 138 and 142 -Complaint - Maintainability Statutory notice sent to the correct address of the drawer but returning with the endorsement that door of the house was locked - In such circumstances, held, High Court rightly held that non-service of the notice could not be a ground for dismissal of the complaint even before the same was numbered - Burden to show that the accused drawee had managed to get an incorrect postal endorsement, held, lies on the complainant and effects thereof have to be considered during the trial on the background facts of the case.