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Judgment
This criminal appeal under Section 378 of the Code of Criminal Procedure, 1973 / Section 419 of BNS, 2023, has been filed by the appellant th against the judgment dated 16.02.2024 passed by the learned 12 Additional Sessions Judge, District Rewa in CRA No.08/2024, reversing the judgment dated 18.12.2023 passed by the Judicial Magistrate First Class, Rewa (M.P.) in SC NIA No.4000786/2016 whereby the respondent-Raju Soni (hereinafter referred to as the 'accused') had been convicted under Section 138 of N.I. Act and sentenced for three months RI and fine of Rs.2,79,925/- with default stipulation.
It is submitted by the learned counsel appearing on behalf of the present appellant that the learned lower appellate Court vide the impugned judgment dated 16.02.2024 has erroneously presumed that under Section 27 of General Clauses Act, period of 30 days is required for presumption in said section while he referred the judgment of a coordinate Bench of this Court in MCRC No.11427/2023 (Vinay Kumar Mishra vs. Aditya Nayak) dated 26.02.2026, and submitted that the period of 30 days is erroneous. If the notice is sent by registered post or speed post to an addressee within the same city or district, the Court shall ordinarily presume service within 3 to 5 days from the date of dispatch and since the notice Ex.P/3 has been sent within the city of Rewa, therefore, it would have been presumed to be served within 3 to 5 days after sending of this notice on 06.10.2015. Hence, the complaint filed before the Court on 03.11.2015 is well within time limit prescribed in the N.I. Act. Ergo, it cannot be said that it is premature. The observation of the learned lower appellate Court is erroneous and since other points have not been discussed by the learned lower appellate Court which have been raised before it, the matter be remanded back to the learned lower appellate Court for deciding it afresh in light of the observations made by a coordinate Bench of this Court in MCRC No.11427/2023.
Per contra, learned counsel appearing on behalf of the respondent/accused has submitted that the learned lower appellate Court has rightly interpreted Section 27 of the General Clauses Act. It is contended that, after issuing the notice on 06.10.2015, the complainant was required to wait for 30 days before filing the complaint, therefore, the complaint filed on 03.11.2015 is premature.
Heard the rival contentions of learned counsel for the parties and perused the record meticulously.
For deciding the controversy involved in this appeal, it is apt to peruse the provisions of Section 27 the General Clauses Act, 1897 as well as Sections 138 and 142 of the Negotiable Instruments Act, 1881, which are as follows:-
Section 27 of the General Clauses Act, 1897
"27.Meaning of service by post.—Where any 2[Central Act] or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression “serve” or either of the expressions “give” or “send” or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
Section 138 of the N.I. Act, 1881
138.Dishonour of cheque for insufficiency, etc., of funds in the account.—Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for 4[a term which may be extended to two years’], or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless—
(a)the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b)the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice; in writing, to the drawer of the cheque, 5[within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c)the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Section 142 of the N.I. Act, 1881
142.Cognizance of offences.—1[(1)] Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),—
(a)no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;
(b)such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138:
2[Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period;]
(c)no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138.].
3[(2) The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction,—
(a)if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or
(b)if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated.
The provision of Section 27 of General Clauses Act, 1897 does not contain any provision as regards the period which is necessary for drawing the presumption after sending a letter by registered post on correct address of the addressee. It only provides that such presumption would be effected at the time at which the letter would be delivered in ordinary course of post. The learned lower appellate Court has assumed that such period is 30 days from the date when the notice has been sent but the observation of learned lower appellate Court cannot be said to be lawful.
The coordinate Bench of this Court in MCRC No.11427/2023, vide order dated 26.02.2026 has discussed the matter at length and observed as follows:
"8.The question which arises for consideration is whether the complaint filed by the petitioner could have been dismissed solely on the ground that the track report regarding service of notice was not produced, despite the notice having been sent by registered post on the correct address of the respondent. At this stage, it is apposite to refer to Section 27 of the General Clauses Act, 1897, which reads as follows:
“Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression “serve” or either of the expressions “give” or “send” or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.”
9.The aforesaid provision creates a statutory presumption of service when a notice is properly addressed, prepaid and dispatched by registered post.
10.The Hon’ble Supreme Court in C.C. Alavi Haji (supra) has held that once notice is sent by registered post to the correct address of the drawer, the presumption of service arises and the burden shifts upon the accused to rebut the same.
11.Similarly, in Ajeet Seeds Ltd. (supra), the Supreme Court reiterated the principle regarding presumption of service under Section 27 of the General Clauses Act. However, this Court finds that neither of the aforesaid judgments lays down that presumption of service can arise only after 30 days from dispatch of the notice. The presumption operates on the basis of the ordinary course of postal business, which ordinarily would be a few days depending upon the distance and mode of dispatch.
12.Therefore, the revisional Court erred in interpreting the aforesaid judgments as mandating a fixed period of 30 days for drawing presumption of service.
13.In view of the aforesaid settled principles of law, this Court is of the considered opinion that non-production of the service report or track report by itself cannot be a ground to dismiss a complaint under Section 138 of the Negotiable Instruments Act at the threshold, particularly when the complainant has asserted that the notice was duly dispatched on the correct address of the accused. The question whether the notice was actually served or not is essentially a matter of evidence, which can appropriately be examined during trial and the accused is always at liberty to rebut the statutory presumption of service. Therefore, the learned Magistrate ought not to have dismissed the complaint at the threshold merely on the ground that the acknowledgment or track report was not produced. The revisional Court also erred in presuming the fixed period of 30 days for drawing presumption of service."
In the instant case also, it is not in dispute that the notice Ex.P/3 has been given on the correct address of the accused on 06.10.2015 and the addressee also lives in Rewa city. Therefore, the notice was to be served in Rewa city itself and having considered the observation of the coordinate Bench in the aforesaid case, the notice in ordinary course of post would have been delivered within 3 to 5 days and if we assume it as 5 days then the notice dated 06.10.2015 would have been served on the accused till 11.10.2015 and the limitation of 15 days starts from the said date which becomes over on 26.10.2015 and in a period of month from that date, this complaint has been filed on 03.11.2015 as per the provisions of Section 142 of the N.I. Act, and the learned trial Court has rightly took cognizance as per the provisions of Section 142 of N.I. Act.
Hence, the observation of learned lower appellate Court by impugned judgment is found to be erroneous and since the other grounds raised in the appeal have not been considered by the learned lower appellate Court, therefore, the matter is remanded back to the learned lower appellate Court for deciding it afresh keeping in view the observations of this Court as aforesaid.
With the aforesaid, this appeal is disposed of.