Holding

The presumption of service of a notice sent by post may be invoked when it is returned unserved due to non‑availability, but the question of deemed service is factual and the court should not quash the proceedings at the pre‑trial stage; thus the High Court was correct in rejecting the Section 482 petition.

Summary

The appellant issued a cheque of Rs.1,25,000 which was dishonoured for insufficient funds. The respondent sent a legal notice by registered post, which was returned unserved with the endorsement "party not in station arrival not known". A complaint under Section 138 of the Negotiable Instruments Act was filed and a criminal process was issued. The appellant sought to quash the proceedings under Section 482 of the CrPC, arguing that no notice was served. The Supreme Court held that whether notice is deemed served when returned unserved due to non‑availability of the addressee is a factual question; the presumption of service under Section 27 of the General Clauses Act may apply but is rebuttable, and the High Court was correct in refusing to quash the process at the pre‑trial stage. Consequently, the appeals were dismissed and the criminal complaints were allowed to proceed.

Issues considered

Whether a notice returned unserved because the addressee was unavailable can be deemed served under clause (c) of the proviso to Section 138 of the Negotiable Instruments Act.
Whether the High Court could quash the criminal proceedings under Section 482 of the Code of Criminal Procedure on the ground of non‑service of notice.
Whether the presumption of service under Section 27 of the General Clauses Act applies to such notices and how it may be rebutted.

Legislation cited

Code of Criminal Procedure, 1973s. 204, s. 482
General Clauses Act, 1897s. 27
Negotiable Instruments Act, 1881s. 138, s. 142, s. proviso clause (c)

Subjects

Negotiable Instruments ActSection 138deemed service of noticecheque bounceSection 482 CrPCpresumption of serviceGeneral Clauses Actmischief rulepurposive construction

Judgment

A D. VINOD SHIVAPPA
v.
NANDA BELLIAPPA

MAY 25, 2006

B [B.P. SINGH AND R.V. RA VEENDRAN, JJ.]

Negotiable Instruments Act, J88J-Section J38-Dishonour ofcheque--
Legal Notice by post-Refused due to non-availability of addressee--
Whether can be presumed to be service-Held: The presumption of service
c ofnotice in such cases depends on facts of each case-The question whether
there was deemed service in the sense that the endorsement made on the
envelope was manipulated or was a false endorsement, is a question offact
and must be considered in the light of the evidence-If in such cases it is
understood that there has been no service, it would defeat the purpose of
the Act.
D
Code of Criminal Procedure, J973-S. 482-Jurisdiction under-
Scope of-Dishonour of cheque-Legal notice-Returned due to non-
availability of addressee-Complaint-Process issued-Application under
Section 482-Held: The question whether service of notice has been
E fraudulently avoided, is a question of fact to be decided on the basis of
evidence-Jn such case High Court should not exercise its jurisdiction under
the provision-Negotiable Instruments Act, J881-Section J38.

Interpretation of Statutes-Jn interpreting a statute, the Court must
F adopt that construction, which suppresses the mischief and advances the
remedy.

Principles-Rule of purposive construction or mischief rule.
.. .
In the present cases, the legal notice was returned due to non-
G availability of the addressee. On complaint, criminal case was registered
and process was issued. Appellant's application under Section 482
Cr.P.C. was dismissed by High Court. Hence the present appeals.

The question for consideration in the present appeals was whether
H in a case where the postal endorsement shows that the notice could not
1008
D. VINOD SHIV APPA v. NANDA BELLIAPPA I009

• • be served on account of the non-availability of the addressee, a cause A
of action may still arise for prosecution of the drawer of the cheque on
the basis of deemed service of notice under clause (c) of proviso to
Section 138 of Negotiable Instruments Act, 1881.

Dismissing the appeals, the Court
B
HELD: 1.1. The question whether in a case of this nature, where
the postal endorsement shows that the notice could not be served on
account of the non-availability of the addressee, a cause of action may
still arise for prosecution of the drawer of the cheque on the b_asis of
deemed service of notice under clause (c) o.f proviso to Section 138 of
Negotiable Instruments Act, 1881, has t? bt; a.~swered by reference to
c
the facts of each case and no rule of.un!versal application can be laid
down that· in all cases where notice is not served on account of non-
availability of the addressee, the court must presume service of notice.
[1013-H, 1014-A-B)
D
1.2. In each such cas.e 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 etc. etc., if the law is understood to mean that there has
been no service of notice, it would completely defeat the very purpose E
of the Act. It would then be very easy for an unscrupulous and dishonest
drawer of a cheque to make himself scarce for sometime after issuing
the cheque so that the requisite statutory notice can never be served
upon him and consequently he can never be prosecuted. [1015-C-E)

1.3. The question as to whether there was deemed service of notice, F
in the sense that the .endorsement made on the returned envelope was
a manipulated and false endorsement, is essentially a question of fact,
and that must be considered in the light of the evidence on record. It
would be premature at the stage of issuance of process, to move the High
Court for quashing of the proceeding under Section 482 Cr.P.C. The
High Court was thus right in rejecting the petitions filed by ·the
G
appellant under Section 482 Cr.P.C. [1020-A-B)

K. Bhaskaran v. Sankar.an Vaidhya Balan and Anr., [1999) 7 SCC
510; Dalmia Cement (Bharat) Ltd v. Galaxy Traders and Agencies Ltd and
Ors., (2001) 6 SCC 463; V. Raja Kumari v. P. Subbarama Naidu and Anr., H
1010 SUPREME COURT REPORTS [2006) SUPP. 2 S.C.R.

A (20041 8 SCC 874; Prem Chand Vijay Kumar v. Yashpal Singh and Anr.,
(200514SCC417 and Sadanandan Bhadran v. Madhavan Sunil Kumar,
....
(1998) 6 sec 514, relied on.

2. In interpreting a statute the court must adopt that construction
B which suppresses the mischief and advances the remedy. (1014-B-C)

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
1255 of 2004.

From the Judgment and Order dated 19.7.2004 of the High Court of
c Kamataka at Bangalore in Crl. Appeal No. 2091/2004.

Kailah Vasdev, Sr. Adv., Girish Ananthamurty and T.N. Rao, Advs.,
with him for the Appellant.

D Ms. Kiran Suri, Adv., for the Respondent.

The Judgment of the Court was delivered by

B.P. SINGH, J. : These seven appeals arise out of seven separate •
orders passed by a learned Single Judge of the Kamataka High Court on July
E 19, 2004 dismissing seven criminal petitions filed under Section 482 of the
Code of Criminal Procedure for setting aside the orders of the JMFC
Medikeri issuing process against the appellant on the complaints filed by the
respondent under Section 138 of the Negotiable Instruments Act, 1881 (for
short 'Act').
F
The facts of the cases are similar and the same question arises for
consideration in each of the appeals. The only distinction is that whereas in
Criminal Appeal Nos. 1256 and 1257 of2004 the notices sent to the appellant
were returned with the endorsement "addressee always absent during
G delivery time. Hence returned to sender", in the remaining five cases the
notices were returned with the endorsement "party not in station. Arrival not
known."

The representative facts are taken from Criminai Appeal No. 1255 of
H 2004.
D. VINOD SHIVAPPA v. NANDA BELLIAPPA [B.P. SINGH, J.] IOI I
< ,.

The case of the complainant-respondent is that the appellant had issued A
a cheque in his favour for a sum ofRs.1,25,000/- on November 7, 2003. The
cheque was presented to the bank for encashment but the same was returned
on March 6, 2004 with the endorsement "funds insufficient". The respondent
issued a legal notice to the appellant calling upon him to make the payment.
The said notice was sent on March 17, 2004 by registered ·post but the same
was returned unserved on March 25, 2004 with an endorsement "party not
B
in station arrival not known". The respondent thereafter filed a complaint
under Section 138 of the Act on May 4, 2004. By order dated June 2, 2004
the learned Magistrate passed orders under Section 204 of the Code of
Criminal Procedure registering a criminal case and issuing process against
the appellant. c
The appellant filed an application under Section 482 of the Code of
Criminal Procedure before the High Court which has been dismissed by the
impugned order. From the judgment of the High Court it appears that the
only point argued before the High Court was the question of limitation.
D
However, before us other legal submissions have been advanced but not the
question of limitation.

Learned counsel for the appellant submitted that in the instant case there
was no service of notice. It is pointed out that the respondent himself
admitted in his complaint that the notice had been returned unserved. It is E
contended that the cause of action arises only after service of notice on the
drawer of a cheque, and in the absence of service ofnotice, no cause ofaction
arose and, therefore, the Magistrate was not justified in taking cognizance
and issuing process. Reliance was placed on the statements contained in the
complaint, the relevant part whereof is as follows :-
F
"6. The Complainant got issued a legal notice on 17.3 .2004 asking
the accused to pay the cheque amount of Rs.1,25,000/- within 15
days from the date of receipt of notice failing which he would take
legal action against the accused.
G
7. The legal notice was issued to address of the accused at No.4,
Lavalle Road, Bangalore 560001.

8. But the legal notice has been returned unserved on 25.3.2004
with the following endorsement "Party not in station arrival not H
1012 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A known".

9. The legal notice has been issued to the same address of the
accused as the notices which were issued to the accused in CC
No.2173/2003, 2174/2003, 2175/2003 and 2208/2003 filed before
this Court. On those occasions the accused has received the notices.
B Hence the complainant states that the address of the accused is
correct and the notice has been sent to the last known place of
residence of accused.

10. Under the circumstances it is prayed that this Hon'ble Court be
C pleased to consider that the notice issued by the complainant as
sufficient and it be deemed served."

We do not agree with the counsel for the appellant that the complainant
has admitted in the complaint that notice had not been served within the
D meaning of Section 138 of the Act. What has been stated in paragraph 8 of
the complaint is the factum of the legal notice having been returned unserved
on March 25, 2004 with an endorsement. This was a fact the complainant
could not deny. But in paragraph I 0 of the complaint the complainant has
stated that notice may be deemed to have been served. The reasons for
deeming service, are stated in the earlier paragraphs of the complaint. The
E question which, therefore, arises is whether in these circumstances the
appellant could pray for quashing of the proceedings under Section 482 of
the Code of Criminal Procedure.

Under Section 138 of the Act, where a cheque issued by the drawer
F in the discharge of any debt or any other liability is returned by the bank
unpaid, because the amount standing to the credit of that account is
insufficient to honour the cheque, the said person is deemed to have
committed an offence. This is subject to proviso to Section 138 which
provides that the cheque should have been presented to the bank within the
pe~iod of six months from the date on which it is drawn or within the period
G of its validity, whichever is earlier. The payee must also make a demand for
the payment of the said amount by giving a notice in writing to the drawer
of the cheque within 30 days of the receipt of the information by him from
the bank regarding the return of the cheque unpaid. If despite this demand,
the drawer fails to make the payment within fifteen days of the receipt of
H the notice, a cause of action arises for prosecuting him for the offence
D. VINOD SHIVAPPA v. NANDA BELLIAPPA [B.P. SINGH, J.] 1013
.. punishable under Section 138 of the Act. Section 142 provides that the court A
shall take cognizance of an offence punishable under Section 138 ofthe Act
upon receipt of a complaint in writing made by the payee or, as the case may
be, the holder in due course of the cheque. Such complaint must be made
within one month of the date on which the cause of action arises under clause
(c) of the proviso to Section 138. However,. discretion is given to the court
to take cognizance of the complaint even after the prescribed period, if the B
complainant satisfies the court that he had sufficient cause for not making
the complaint within such period.

It is not disputed that the drawer of the cheque makes himself liable
for prosecution under Section 138 of the Act ifhe fails to make the payment c
within fifteen days of the receipt of the notice given by the drawee. His
· failure to make the payment within the stipulated period gives rise to a cause
of action to the complainant to prosecute the drawer under Section 138 of
the Act.

Mr. Kailash Vasdev, learned senior counsel appearing for the appellant,
D
vehemently contended before us that proviso (c) of Section 138 of the Act
leaves no room for doubt that the cause of action arises only if the drawer
of the cheque fails to make the payment within 15 days "of the receipt of
the said notice". According to him, therefore, it must be established on record
that notice issued by the payee was in fact received by him. He conceded E
that if the drawer of the cheque refuses to accept the notice, the court may
presume service of notice, but in a case where the notice is not served for
any other reason, it cannot be said to be deemed service of notice giving rise
to a cause of action. He submitted, that apart from the seven notices in these
seven cases, several other notices were issued to the appellant on the same F
address which he accepted, and where due, paid the amount also. He,
therefore, submitted that the appellant has settled all those· disputes where
the claim of the respondent was justified, but he is not willing to pay the
amount claimed by the respondent unjustifiably. It is a queer co-incidence
that the appellant received all those notices where the demand was justified,
and all the notices which could not be served upon him on account of his G
absence from his residence are those where the demand of the respondent
is, according to the appellant, not justified. We need not make any further
comment on this aspect of the matter.

The question is whether in a case of this nature, where the postal H
A
1014 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

endorsement shows that the notice could not be served on account of the non
.. _
availability of the addressee, a cause of action may still arise for prosecution
of the drawer of the cheque on the basis of deemed service of notice under
clause (c) of proviso to Section 138 of the Act. In our view this question
has to be answered by reference to the facts of each case and no rule of
universal application can be laid down that in all cases where notice is not
B served on account of non-availability of the addressee, the court must
presume service of notice.

It is well settled that in interpreting a statute the court must adopt that
construction which suppresses the mischief and advances the remedy. This
C is a rule laid down in Heydon's case (76 ER 637) also known as the rule
of purposive construction or mischief rule.

Section 138 of the Act was enacted to punish those unscrupulous
persons who purported to discharge their liability by issuing cheques without
really intending to do so, which was demonstrated by the fact that there was
D no sufficient balance in the account to discharge the liability. Apart from civil
liability, a criminal liability was imposed on such unscrupulous drawers of
cheques. The prosecution, however, was made subject to certain conditions.
With a view to avoid unnecessary prosecution of an honest drawer of a
cheque, or to give an opportunity to the drawer to make amends, the proviso
E to Section 13 8 provides that after dis-honour of the cheque, the payee or the
holder of the cheque in due course must give a written notice to the drawer
to make good the payment. The drawer is given 15 days time from date of
receipt of notice to make the payment, and only if he fails to make the
payment he may be prosecuted. The object which the proviso seeks to
F achieve is quite obvious. It may be that on account of mistake of the bank,
a cheque may be returned despite the fact that there is sufficient balance in
the account from which the amount is to be paid. In such a case if the drawer
of the cheque is prosecuted without notice, it would result in great in-justice
and hardship to an honest drawer. One can also conceive of cases where a
well intentioned drawer may have inadvertently missed to make necessary
G arrangements for reasons beyond his control, even though he genuinely
intended to honour the cheque drawn by him. The law treats such lapses
induced by inadvertence or negligence to be pardonable, !Jrovided the drawer
after notice makes amends and pays the amount within the prescribed period.
It is for this reason that clause (c) of proviso to Section 138 provides that
H the section shall not apply unless the drawer of the cheque fails to make the
D. VINOD SHIVAPPA v. NANDA BELLIAPPA [B.P. SINGH, J.) 1015

payment within 15 days of the receipt of the said notice. To repeat, the A
proviso is meant to protect honest drawers whose cheques may have been
dishonoured for the fault of others, or who may have genuinely wanted to
fulfil their promise but on account of inadvertence or negligence failed to
make necessary arrangements for the payment of the cheque. The proviso
is not meant to protect unscrupulous drawers who never intended to honour
the cheques issued by them, it being a part of their modus operandi to cheat
B
. unsuspecting persons.

If a notice is issued and served upon the drawer of the cheque, 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 us C
with 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 etc.
etc. If in each such case the law is understood to mean that there has been
no service of notice, it would completely defeat the very purpose of the Act.
D
It would then be very easy for an unscrupulous and dishonest drawer of a
cheque to make himself scarce for sometime 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, the payee of the cheque, issues notice
to the drawer of the cheque, the cause of action to file a complaint arises E
on the expiry of the period prescribed for payment by the drawer of the
cheque. Ifhe does not file a complaint within one month of the date on which
the cause of action arises under clause (c) of the proviso to Section 138 of
the Act, his complaint gets barred by time. Thus, a person who can dodge
the postman for about a month or two, or a person who can get a fake
F
endorsement made regarding his non availability can successfully avoid his
prosecution because the payee is bound to issue notice to him within a period
of 30 days from the date of receipt of information fr01n the bank regarding
the return of the cheque as unpaid. He is, therefore, bound to issue the legal
notice which may be returned with an endorsement that the addressee is not
available on. the given address. G

We cannot also lose sight of the fact that the drawer may by dubious
means manage to get an incorrect endorsement made on the envelope that
the premises has been found locked or that the addressee was not available
at the time when postman went for delivery of the letter. It may be that the H
1016 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A address is correct and even the addressee is available but a wrong endorsement
is manipulated by the addressee. In such a case, if the facts are proved, it
may amount to refusal of the notice. If the complainant is able to prove that
·-
the drawer of the cheque knew about the notice and deliberately evaded
service and got a false endorsement made only to defeat the process of law,
the Court shall presume service of notice. This, however, is a matter of
B evidence and proof. Thus even in a case where the notice is returned with
the endorsement that the premises has always been found locked or the
addressee was not available at the time of postal delivery, it will be open
to the complainant to prove at the trial by evidence that the endorsement is
not correct and that the addressee, namely the drawer of the cheque, with
c knowledge of the notice had deliberately avoided to receive notice. Therefore,
it would be pre-mature 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. The question as to whether the service of notice has
been fraudulently refused by unscrupulous means is a question of fact to be
decided on the basis of evidence. In such a case the High Court ought not
D
to exercise its jurisdiction under Section 482 of the Code of Criminal
Procedure.

We may now consider some of the authorities cited at the Bar.

E In [ 1999] 7 SCC 510 : K. Bhaskaran v. Sankaran Vaidhyan Ba/an and
Another, the drawee had presented a cheque issued by the drawer but the
same was dishonoured. A notice was sent by registered post but the same
was returned with the endorsement that the addressee was found absent on
3rd, 4th and 5th February, 1993 and intimation was served on addressee's
F house on 6th February, 2003. Thereafter the postal article remained unclaimed
till 15th February, 1993 and it was returned to the sender with a further
endorsement "unclaimed". The complaint filed by the drawee was dismissed
on the ground of territorial jurisdiction as also on the ground that since the
notice had not been received by the drawer, there was no cause of action
for filing the complaint. On appeal, the High Court reversed the order of
G acquittal. The appellant approached this Court by special leave. This Court
held in favour of the respondent on the question of territorial jurisdiction.
On the question of notice this Court considered the scheme of Section 138
of the Act by particular reference to clauses (b) and (c) of the proviso thereof.
In view of the legislative scheme it was held, the failure on the part of the
H drawer to pay the amount should be within 15 days "of the receipt" of the
D. VINOD SHIVAPPA v. NANDA BELLIAPPA [B.P. SINGH, J.] 1017

said notice. It was clear that the "giving of notice" in the context was not A
the same as the receipt of notice. "Giving" was the process of which the
"receipt" was the accomplishment. This Court then observed :

"If a strict interpretation is given that the drawer should have
actually received the notice for the period of 15 days to start running
no matter that the payee sent the notice on the correct address, a
B
trickster cheque drawer would get the premium to avoid receiving
the notice by different strategies and he could escape from the legal
consequences of Section 138 of the Act. It must be borne in mind
that Court should not adopt in interpretation which helps a dishonest
evader and clips an honest payee as that would defeat the very c
legislative measure."

This Court noticed the position well settled in law that the notice
refused to be accepted by the drawer can be presumed to have been served
on him. In that case the notice was returned as "unclaimed" and not as D
refused. The Court posed the question "Will there be any significant
difference between the two so far as the presumption of service is concerned?"
Their Lordships referred to Section 27 of the General Clauses Act and
observed that the principle incorporated therein could profitably be imported
in a case where the sender had despatched the notice by post with the correct E
address written on it. Then it can be deemed to have been served on the
sendee, unless he proves that it was not really served and that he was not
responsible for such non-service. This Court dismissed the appeal preferred
by the drawer holding that where the notice is returned by the addressee as
unclaimed such date of return to the sender would be the commencing date
in reckoning the period of 15 days contemplated in clause (c) to the proviso F
of Section 13 8 of the Act. This 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. Since the appellant did not attempt to discharge
the burden to rebut the aforesaid presumption, the appeal was dismissed by
this Court. The aforesaid decision is significant for two reasons. Firstly it was G
held that the principle incorporated in Section 27 of the General Clauses Act
would apply in a case where the sender despatched the notice by post with
the correct address written on it, but that 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. H

'
1018 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A In [200 I] 6 SCC 463 : Dalmia Cement (Bharat) Ltd. v. Galaxy Traders
& Agencies Ltd. and Others, the facts were that a cheque given by the
respondent to the appellant was dishonoured on May 28, l 998 of which
intimation was received by the appellant on June 2, l 998. On June 13, 1998
the appellant issued to the respondent and one of its partners the statutory
notice under Section 138 of Act and received the postal acknowledgement
B of the notice on June 15, 1998 which was the last date of limitation on the
basis of the said notiCe. However, the appellant again presented the cheque
on July I, 1998 which was again dishonoured on July 2, 1998. The appellant
sent a second notice of dishonour of the cheque but the respondent having
received the notice on July 27, 1998 did not make the payment. On
c September 9, 1998 the appellant filed a complaint. The respondent moved
a petition before the High Court for quashing of the complaint under Section
482 of the Code of Criminal Procedure on the ground that it was time barred
since acknowledgement of the first notice was received by the complainant
on June 15, 1998 and the complaint was filed after July 15, 1998. The
appellant on the other hand contended that the respondent's having denied
D
receipt of the first notice, the only course open to the appellant was to present
the cheque again. The High Court quashed the complaint as time barred. This
Court allowed the appeal of the appellant after considering the authorities
cited at the bar and observed :-

E "Section 27 of the General Clauses Act deals with the presumption
of service of a letter sent by post. The despatcher of a notice has,
therefore, a right to insist upon and claim the benefit of such a
presumption. But as the presumption is rebuttable one, he has two
options before him. One is to concede to the stand of the sendee
F that as a matter of fact he did not receive the notice, and the other
is to contest the sendee's stand and take the risk for proving that
he in fact received the notice. It is open to the despatcher to adopt
either of the options. If he opts the former, he can afford to take
appropriate steps for the effective service of notice upon the
addressee. Such a course appears to have been adopted by the
G appellant-company in this case and the complaint filed, admittedly,
within limitation from the date of the notice of service conceded to
have been served upon the respondents."

This Court also held that though the payee may successively re-present
H a dischonoured cheque but once a notice under Section 138 of the Act was
D. VINOD SHIVAPPA v. NANDA BELLIAPPA [B.P. SINGH, J.] 1019

received by the drawer of the cheque, the payee or the holder of the cheque A
forfeits his right to again present the cheque, since the cause of action had
accrued when there was failure to pay the amount within !he prescribed
period.

Counsel for the appellant relied on paragraph 6 of the report wherein
it was observed that it is not the "giving" of the notice but it is the failure
B
to pay after "receipt" of the notice by the drawer which gives the cause of
action to the complainant to file the complaint within the statutory period.
It is no doubt true that the receipt of the notice has to be proved, but as held
by this Court consistently, refusal of notice amounts to service of notice.
Similarly in a case where notice is not claimed even though sent by registered c
post, with the aid of Section 27 of the General Clauses Act, the drawer of
the cheque may be called upon to rebut the presumption which arises in
favour of service of notice.

In [2004] 8 SCC 774 : V. Raja Kumari v. P. Subbarama Naidu and
Another, dealing with a case where the notice could not be served on account
D
of the fact that the door of the house of the drawer was found locked, this
Court held that the principle incorporated in Section 27 of the General
Clauses Act will apply to a notice 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. This Court reiterated the principle laid down in K. Bhaskaran E
v. Sankaran Vaidhyan Ba/an and Another case (supra). This Court while
dismissing the appeal concluded :-

"Burden is on the complainant to show that the accused has
managed to get an incorrect postal endorsement made. What is the
F
effect of it has to be considered during trial, as the statutory scheme
unmistakably shows the burden is on the complainant to show the
service of notice. Therefore, where material is brought to show that
there was false endorsement about the non-availability of noticee,
the inference that is to be drawn has to be judged on the background
facts of each case." G

In [2005] 4 SCC 417: Prem Chand Vijay Kuamr v. Yashpal Singh and
Another, the Court relied upon the principle laid down in (1998) 6 SCC 514
: Sadanandan Bhadran v. Madhavan Sunil Kumar which was followed in
Dalmia Cement (Bharat) Ltd. v. Galaxy Traders & Agencies Ltd. and Others H
1020 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A (supra).

None of the decisions considered above take a view different from the
view we have taken. The question as to whether there was deemed service
of notice, in the sense that the endorsement made on the returned envelope
was a manipulated and false endorsement, is essentially a question of fact,
B and that must be considered in the light of the evidence on record. The High
Court was thus right in rejecting the petitions filed by the appellant under
Section 482 of the Code of Criminal Procedure.

Learned counsel for the appellant submitted that there may be
c unscrupulous complainants, who may manage to get a false postal endorsement
of "refusal" or "unclaimed" or "party not available" and then prosecute an
innocent or bona fide drawer. We do not think that the drawer is without
remedy. He can also establish by evidence that said endorsement of "refusal"
or "unclaimed" or "not found" during delivery time to be false. Alternatively,
he may pay the amount due and compound the matter. Be that it may.
D
These appeals are, therefore, dismissed. The trial court is directed to
proceed with the complaint cases in accordance with law. Nothing stated
above shall be construed as expression of an opinion on the merit of the
matters.
E
K.K.T. Appeals dismissed.

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