YADAV CHANDRA SHARMA Vs. GYANENDRA SINGH KUSHWAH

JUDGEMENT

(1.) Present petition under Article 226 of the Constitution of India has been preferred by the petitioner against the order dated 22/9/2017 passed by First Additional Sessions Judge, District Gwalior,whereby, the order dated 16/6/2017 passed by Judicial Magistrate First Class, Gwalior in Criminal Case No. 1570/2011; whereby, application preferred by the petitioner for calling the Postman as witness in the case has been turned down, has been confirmed.

(2.) Precisely stated facts of the case are that respondent has filed a private complaint against the petitioner under Section 138 of Negotiable Instrument Act, 1881 with the allegation that petitioner obtained Rs. 3 lacs as loan from the respondent in the month of December, 2010 and for returning the same, petitioner has given him a cheque which got dishonoured as unpaid. Therefore, respondent served a legal notice upon petitioner for demand of cheque amount vide notice dated 7/2/2011 by RAD post. However, as per the respondent, the said notice returned back with the endorsement of 'refused to take notice'. The said fact according to petitioner was not correct because there appears to be some interpolation over the endorsement made over the acknowledgement card attached with the legal notice, therefore, petitioner sought summoning of Postman (Ramsingh) who made the said endorsement. Trial Court rejected the application for calling the Postman as witness and on challenge,said order has been affirmed by Rivisional Court. Hence,this petition.

(3.) According to learned counsel for the petitioner the rebuttable presumption exists regarding service of notice and petitioner through the testimony of Postman wants to assert that he never received such notice for dishonour of the cheque. According to him, the provisions of section 27 of General Clauses Act also take into consideration the legal position that due service of notice through RAD post has a rebuttable presumption. He prayed for setting aside of the impugned orders.