//
you're reading...
CHEQUE BOUNS CASE

Sec.138 – cheque bounce case – General Clauses Act sec.27 – Evidence Act Sec.114 – Presumption of service of notice when the address is found correct when the cover / acknowledgement not returned – on receiving of summons, the accused paid the amount – objection for quashing the cheque bounce case as the offence was committed in earlier point of time – payment made later never cured – High court held that the statutory presumption is no more available in view of the Judgment of Apex court held in C.C.ALAVI HAJI it was observed that if the petitioner/drawer claims that he did not receive the notice sent by the drawee by post, if the drawer pays the money covered by the cheque within 15 days from the date of receipt of summons in the case, it would be tantamount to complying with the payment of cheque and that the cause of action for the offence under Section 138 of the N.I. Act would no more survive. and high court held that when the accused claimed that no notice was served on him and his payment after receiving summons is nothing but compliance of condition made in sec.138 of N.I. Act – remaining the case pending despite of compliance is not maintainable and as such the case is liable to be quashed = Criminal Petition No.740 of 2014 05-8-2014 B.Ram Mohan Reddy Petitioner/Accused C.V.Subba Rao and another Respondents/Complainant = 2014 – Aug. Month- http://judis.nic.in/judis_andhra/filename=11803

Sec.138 – cheque bounce case – General Clauses Act sec.27 – Evidence Act Sec.114 – Presumption of service of notice when the address is found correct when the cover / acknowledgement not returned – on receiving of summons,  the accused paid the amount – objection for quashing the cheque bounce case as the offence was committed in earlier point of time – payment made later never cured – High court held that the statutory presumption is no more available in view of the Judgment of Apex court held in C.C.ALAVI HAJI   it was observed that if the petitioner/drawer claims that he did not receive the notice sent by the drawee by post, if the drawer pays the money covered by the cheque within 15 days from the date of receipt of summons in the case, it would be tantamount to complying with the payment of cheque and that the cause of action for the offence under Section 138 of the N.I. Act would no more survive. and high court held that when the accused claimed that no notice was served on him and his payment after receiving summons is nothing but compliance of condition made in sec.138 of N.I. Act – remaining the case pending despite of compliance is not maintainable and as such the case is liable to be quashed =

whether

statutory notice was sent to the correct address of the

drawer or not arose for consideration and the Court

invoked Section 27 of the General Clauses Act and held

that once the notice was sent to the correct address,

it is deemed to have been served upon the respondent.

K.Bhaskaran v. Sankaran Vaidhyan Balan [(1999) 7 SCC 510].

In that case, the

Supreme Court observed that once notice was sent to the

correct address, it would be deemed to have been served

upon the other side in view of Section 27 of the General

Clauses Act.  However, the observation of the Supreme

Court that Bhaskarans case of giving of notice and

receipt of notice should be interpreted in accordance

with the view in Bhaskarans case. 

8. In C&C Enterprises, Hyderabad v. State of

A.P. , similar question arose where a statutory notice

sent by the drawee was returned with an endorsement 

not claimed.  Once again, a learned Single Judge of this

Court drew the presumption under Section 27 of the

General Clauses Act.

However, in view of the decision of

the Supreme Court in C.C.ALAVI HAJI (1 supra), these 

decisions have no bearing regarding the question whether

it should be presumed that the statutory notice was

served upon the petitioner or not.

9. Consequently, this criminal petition is allowed.

C.C.No.1158 of 2012 on the file of the XVIII Additional

Chief Metropolitan Magistrate, Nampally, Hyderabad is

accordingly quashed.  The miscellaneous petitions,

if any, pending in this petition shall stand closed.        

2014 – Aug. Month- http://judis.nic.in/judis_andhra/filename=11803

HONBLE Dr. JUSTICE K.G.SHANKAR

Criminal Petition No.740 of 2014

05-8-2014

B.Ram Mohan Reddy Petitioner/Accused

C.V.Subba Rao  and another Respondents/Complainant

Counsel for the Petitioner:   Sri Mohd. Adnan

Counsel for Respondent No.1: Sri B.Vijaysen Reddy

Counsel for Respondent No.2: Public Prosecutor,

High Court, Hyderabad

<Gist:

>Head Note:

? Cases referred:

1.      2007 (3) ACR 2738

2.      2005 (2) ALD (Crl.) 282 (AP)

3.      2006 (1) ALD (Crl.) 858 (AP)

HONBLE Dr. JUSTICE K.G.SHANKAR

Criminal Petition No.740 of 2014

Date: 05-8-2014

Order:

The petitioner is the sole accused in C.C.No.1158 of

2012 on the file of the XVIII Additional Chief Metropolitan

Magistrate, Nampally, Hyderabad.  He seeks for

quashment of the case.  The 1st respondent is the

complainant.  He lodged a complaint with the

XVIII Additional Chief Metropolitan Magistrate, Nampally,

Hyderabad that the petitioner issued a cheque for a sum

of Rs.3,500/- on 05-7-2009 and that the cheque stood

bounced.  The 1st respondent consequently laid the

complaint, which was taken on file as C.C.No.1158 of

2012.  The petitioner sought for the quashment of the

same.

2. The petitioner and the 1st respondent are tenant

and landlord.  There appears to be disputes between

them.  Whatever the reason be, the 1st respondent filed

a rent control case against the petitioner for his eviction.

He succeeded before the Trial Court, in the appeal as well

as in the revision before the High Court.  The petitioner

approached the Supreme Court and obtained stay.  Inter

alia, it would appear that the Supreme Court directed the

petitioner to deposit agreed rents every month and that it

would also appear that there is a default clause.  Hence,

albeit the amount involved is quite meager, other stakes

are involved on both sides in this case.

3. The learned counsel for the petitioner submitted

that after receipt of summons from the Court, the

petitioner paid the amount covered by the cheque.

The 1st respondent admitted the same.  The learned

counsel for the petitioner contended that the cause of

action did not survive once the petitioner paid the money

covered by the cheque.  The learned counsel for the

1st respondent, on the other hand, submitted that the

cause of action survives as the petitioner initially failed to

honour the cheque and committed the offence under 

Section 138 of the Negotiable Instruments Act, 1881

(the N.I. Act, for short).

4. Both sides placed reliance upon C.C.ALAVI HAJI

v. PALAPETTY MUHAMMED .  In that case, a 3-Judge

Bench of the Supreme Court considered various aspects

of service of notice and the presumption under

Section 27 of the General Clauses Act, 1897 as well as

the presumption under Section 114 of the Indian

Evidence Act, 1872.

5. The Supreme Court observed in C.C.ALAVI HAJI

(1 supra) that under Section 27 of the General Clauses

Act, if a notice is sent to the correct address of a party,

it is deemed to be service on the party.  The learned

counsel for the 1st respondent contended that he sent

statutory notice to the petitioner and that it therefore

shall be deemed that the petitioner received the notice.

On the other hand, the learned counsel for the petitioner

submitted that in C.C.ALAVI HAJI (1 supra), it was

observed that if the petitioner/drawer claims that he did

not receive the notice sent by the drawee by post, if the

drawer pays the money covered by the cheque within 

15 days from the date of receipt of summons in the case,

it would be tantamount to complying with the payment of

cheque and that the cause of action for the offence under

Section 138 of the N.I. Act would no more survive.

6. The learned counsel for the 1st respondent invited

my attention to the further observations of the Supreme

Court in C.C.ALAVI HAJI (1 supra) that the Court

should follow the view in K.Bhaskaran v. Sankaran

Vaidhyan Balan [(1999) 7 SCC 510].  In that case, the

Supreme Court observed that once notice was sent to the

correct address, it would be deemed to have been served

upon the other side in view of Section 27 of the General

Clauses Act.  However, the observation of the Supreme

Court that Bhaskarans case of giving of notice and

receipt of notice should be interpreted in accordance

with the view in Bhaskarans case.  Such observations

are preceded by the observations of the Court that so

long as the drawer pays the money covered by the cheque

within 15 days of receipt of summons, the petitioner

would not be liable for prosecution under Section 138 of

the N.I. Act.  The Court is very clear that whether the

petitioner received the notice or is deemed to have

received statutory notice is irrelevant so long as the

petitioner claims that he did not receive the notice and so

long he honours the cheque within 15 days of receipt of

summons.  In the present case, admittedly, the amount

covered by the cheque was paid by the petitioner within

15 days from the date of receipt of summons.  I therefore

consider that the cause of action has not survived in

C.C.No.1158 of 2012 once the amount covered by the

cheque was paid by the petitioner.

7. The learned counsel for the 1st respondent placed

reliance upon Yaswitha Construction (P) Ltd. v. Chtta

Subba Reddy .  In that case, the question whether

statutory notice was sent to the correct address of the

drawer or not arose for consideration and the Court

invoked Section 27 of the General Clauses Act and held

that once the notice was sent to the correct address,

it is deemed to have been served upon the respondent.

        8. In C&C Enterprises, Hyderabad v. State of

A.P. , similar question arose where a statutory notice

sent by the drawee was returned with an endorsement 

not claimed.  Once again, a learned Single Judge of this

Court drew the presumption under Section 27 of the

General Clauses Act.  However, in view of the decision of

the Supreme Court in C.C.ALAVI HAJI (1 supra), these 

decisions have no bearing regarding the question whether

it should be presumed that the statutory notice was

served upon the petitioner or not.

        9. Consequently, this criminal petition is allowed.

C.C.No.1158 of 2012 on the file of the XVIII Additional

Chief Metropolitan Magistrate, Nampally, Hyderabad is

accordingly quashed.  The miscellaneous petitions,

if any, pending in this petition shall stand closed.        

_____________________

Dr. K.G.SHANKAR, J.

05th August, 2014.

Advertisements

About advocatemmmohan

ADVOCATE

Discussion

No comments yet.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: