laws of pleading in complaint under Section 138 Negotiable Instruments Act #indianlaws

It is not necessary to 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 effected at the time at which the letter would have been delivered in the ordinary course of business.

What should be the fate of complaint filed under Section 138 of the Negotiable Instruments Act, 1881 when the complaint is silent on the status of service of notice of dishonor of cheque on the accused was the issue in the instant matter? It was contended that the High Court in its impugned finding erred in quashing the complaint on the ground that complaint is silent about service of notice.

The Court observed that Section 114 of the Evidence Act enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. Section 27 of the General Clauses Act gives rise to a presumption that service of notice has been affected when it is sent to the correct address by registered post. It is not necessary to 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 effected at the time at which the letter would have been delivered in the ordinary course of business.

It was accordingly held that the High Court clearly erred in quashing the complaint on the ground that there was no recital in the complaint that the notice under Section 138 of the NI Act was served upon the accused. The High Court also erred in quashing the complaint on the ground that there was no proof either that the notice was served or it was returned unserved/unclaimed. This since is a matter of evidence would be premature at the stage of issuance of process to move the High Court for quashing of the proceeding under Section 482 of the Code of Criminal Procedure, 1973.

[Ajeet Seeds Ltd. vs. K. Gopala Krishnaiah]
(SC, 16.07.2014)