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Tuesday, September 23, 2014

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.

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