DOOR LOCKED? IS IT A DEEMED DELIVERY UNDER SECTION 138 OF NI ACT?
One must wonder in the present era of corona virus what would happen if the delivery of summons and legal notices have been processed from the sender and haven’t been delivered, wherein, either returned pertaining to the locked door or unaccepted by the person to whom the summon or legal notice was addressed. There has been a significant rise in the cases of cheque bounce as compared to that before 2019. Nevertheless, this article covers the fundamental and essential aspects with regard to delivery of summons and notices with the aid of landmark judgments that may assist the complainant to establish the delivery of legal notice.
TIME-BAR UNDER SECTION 138 TO SERVE THE NOTICE
That it is pertinent to mention about the non-negotiable time period under which the legal notice is to be served upon the accused who has issued a Negotiable Instrument that was dishonored for reason funds insufficient. Section 138 of the Negotiable Act specifically states that a legal notice must be served upon the drawer of cheque or signatory of cheque within 30 days from the date of return memo. Further, if defaulted party fails to pay the demand amount in legal notice within 15 days in such instances limitation period to file the criminal complaint is 30 days.
BURDEN OF PROOF:
When the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of Clause (b) of proviso to Section 138 of the Act stands complied with. When a notice is 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. Thus, the Burden of Proof lies on the Accused in such cases.
LAW OF PRESUMPTION AND SECTION 138 OF N.I ACT:
Under Section 27 of the General Clauses Act, wherein, it is stated that service of notice has been affected and presumed when it is sent to the correct address by registered post. “In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been affected at the time at which the letter would have been delivered in the ordinary course of business.”[1]
It was held by the hon’ble Supreme Court in K. Bhaskaran vs Sankaran Vaidhyan Balan and Anr[2] “No doubt Section 138 of the Act does not require that the notice should be given only by `post’. Nonetheless the principle incorporated in Section 27 (quoted above) can profitably be imported in a case where the sender has dispatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the Sandee unless he proves that it was not really served and that he was not responsible for such non-service. Any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to the strategy of subterfuge by successfully avoiding the notice. Thus, when a notice is returned by the Sandee as unclaimed such date would be the commencing date in reckoning the period of 15 days contemplated in clause (c) to the proviso of Section 138 of the Act. Of course, such reckoning would be without prejudice to the right of the drawer of the cheque to show that he had no knowledge that the notice was brought to his address. In the present case the accused did not even attempt to discharge the burden to rebut the aforesaid presumption.”
EVASION FROM NOTICES;
If a notice has been issued and served upon the drawer of the cheque, then no controversy arises. Similarly, if the notice is refused by the addressee, it may be presumed to have been served. This is also not disputed. This leaves the third situation where the notice could not be served on the addressee for one or the other reason, such as his non availability at the time of delivery, or premises remaining locked on account of his having gone elsewhere.
It was observed by the Apex Court in D. Vinod Shivappa vs Nanda Belliappa[3]“It would then be very easy for an unscrupulous and dishonest drawer of a cheque to make himself scarce for some-time after issuing the cheque so that the requisite statutory notice can never be served upon him and consequently, he can never be prosecuted. There is good authority to support the proposition that once the complainant, issues notice to the drawer of the cheque, the cause of action to file a complaint arises on the expiry of the period prescribed for payment by the drawer of the cheque.” Thus, it’s considered as deemed delivery under these circumstances.
CONCLUSION:
When a notice is sent by registered post and is returned with a postal endorsement ‘refused’ or ‘not available in the house’ or ‘house locked’ or ‘shop closed’ or ‘addressee not in station’, due service has to be presumed. [Vide Jagdish Singh v. Natthu Singh, AIR 1992 SC 1604; State of M.P. v. Hiralal and Ors. At Present in Kalamba Jail vs Gautam Umed Parmar on 3 April, 2013, [1996] 1 SCR 480 and V. Raja Kumari v. P. Subbarama Naidu and Anr., 2005 Cri. L.J. 127]. It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved.
[1] Appeal (Crl.) 767 of 2007 [Arising out of S.L.P. (Criminal) No. 3910 of 2006)
[2] (1999) 7 SCC 510
[3] AIR 2006 SC 2179
AKSHIT RASTOGI, ASSOCIATE LITIGATION, DUCTUS LEGAL
DUCTUS EDGE 