Whether service of notice can be proved by proving photocopies of acknowledgment card containing signature of other side?

 The learned Family Court Judge found that Ext. B2 talaq nama allegedly communicated to the petitioner by the respondent on 17.10.1988 has not been proved to be communicated to the petitioner for the reason that he could not produce the originals of the acknowledgment cards. Exts. B3 to B6 are the photocopies of the acknowledgment cards. The signature of the petitioner is very clearly seen in Ext. B3 photocopy and the signature of the petitioner's father is also seen in Ext. B4 copy of the acknowledgment card. RW4 the Secretary of the Thottathumpady Muslim Jama-ath, who is examined as RW4 admits his signature in Ext. B5 copy of acknowledgment card. Ext. B6 is the copy of acknowledgment card, which is signed by the Secretary of the Mannathala Juma-ath Committee, Chavakkad. Ext. B4 signed by the father of the petitioner has also issued Ext. A7 certificate as President of the Mannathala Juma-ath Committee. It is true that the respondent was not able to produce the originals of acknowledgment cards. He would testify that he had entrusted the documents in original to his Advocate in connection with conducting of M.C. No. 20/1999 before the Judicial First Class Magistrate, Aluva and that the documents somehow got misplaced or lost. But the Advocate had the photocopies of the documents, which were produced for the purpose of this petition. The Advocate is examined as RW6 in support of this averment by the respondent. When an explanation is forthcoming regarding the non-availability of the primary evidence, secondary evidence could be accepted with explanations under Sections 63 and 65(c) of the Evidence Act, and according to us the explanation offered by the respondent as also his Advocate examined as RW6, would satisfy the reasons for producing photocopies of the acknowledgment cards. The rejection of those documents by the Family Court Judge does not appear to be proper.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Mat. Appeal No. 214 of 2006

Decided On: 08.07.2019

 P.U. Mohammed Basheer  Vs. N.P. Sulaikha

Hon'ble Judges/Coram:

V. Chitambaresh and Ashok Menon, JJ.

Citation: AIR 2019(NOC) 752 Ker

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How to appreciate evidence in Cheque dishonour case if there is difference in signature on acknowledgment receipt?

One more legal contention has been raised by Mr. Gupta, the learned advocate for the applicant, that no legal notice as contemplated under clause (b) of the proviso to section 138 of the Negotiable Instruments Act was ever served upon the applicant and hence proceedings are vitiated. From the record it clearly transpires that notice, exhibit-i 1, dated April 26, 1992, was sent by registered post at the registered address of the applicant/accused in Criminal Case No. 1361 of 1992 whereas at exhibit-10 in Criminal Case No. 1562 of 1992. The notice was sent by registered post and the acknowledgment receipt duly signed is produced on record at exhibit-9 in Criminal Case No. 1361 of 1992 and at exhibit-9 in Criminal Case No. 1362 of 1992. Mr. Gupta disputes receipt of the notice saying that the acknowledgment does not bear the signature of the applicant. It is true that the signature on the acknowledgment receipt differs from the cheques in question. Here the question is not of the signature of the addressee but the question is whether it was received or reached at the address mentioned. The correctness of the address mentioned in the cause title of the notice as well as on the acknowledgment is not in dispute. Even the applicant has also written the same address in the cause title of the applications. Dispatch of notice by registered post is also not under challenge and, therefore, would be a relevant fact and the presumption that the notice/letter has reached and was delivered to the addressee can be raised under section 16 of the Indian Evidence Act. Since the address is correct and a letter posted in ordinary course reaches the addressee I have no hesitation in raising the presumption that the notices in question did reach the addressee and have been delivered to the addressee or any authorised person on his behalf and, therefore, this contention also does not find favour of the court. As regards practice and procedure for service of notice through post and if addressee endeavours to manage to have the notice returned with postal remarks "not available in the house", "house locked", "shop closed", the apex court in a recent decision in State of Madhya Pradesh v. Hiyalal [1996] 1 JT SC 609 has held it to be a valid service on respondent-addressee. In the light of this decision, the contention does not hold good as on the facts also the prosecution case is on a much sound footing and the notice shall be deemed to have been served and much significance cannot be attributed to difference in signature. A person consciously or unconsciously may put different signatures. In this case the applicant being conscious about anticipated litigation might have scribed different signature with dishonest and deliberate intention of defeating the provisions.

Gujarat High Court

Satish Jayantilal Shah vs State Of Gujarat on 11 March, 1996

Equivalent citations: 1999 95 CompCas 303 Guj, 1996 CriLJ 3099

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