Supreme Court: Under which circumstances burden is on prosecution to prove that complainant had not received letter sent by accused?

The complainants have denied the receipt of letter dated 3.4.1985 written by the appellant No. 2 to the father of the deceased, referred to hereinabove. However, the appellants have produced the correspondence with the post office and proved the postal stamp to show that the said letter had been sent by registered A.D. to Ramkishan Gupta (PW.8). The law in this regard is well settled.

In Gujarat Electricity Board and Anr. v. Atmaram Sungomal Poshani   MANU/SC/0200/1989 : AIR 1989 SC 1433, this Court examined the issue regarding the presumption of service of letter sent by registered post under Section 27 of the General Clauses Act, 1897 and held as under:

There is a presumption of service of a letter sent under registered cover.... No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him.... The burden to rebut the presumption lies on the party challenging the factum of service.

(Emphasis added)

A similar view has been re-iterated by this Court in Chief Commissioner of Income Tax (Administration), Bangalore v. V.K. Gururaj and Ors.   MANU/SC/1348/1996 : (1996) 7 SCC 275; and Shimla Development Authority and Ors. v. Santosh Sharma (Smt.) and Anr.   MANU/SC/0416/1997 : (1997) 2 SCC 637.

In Harihar Banerji v. Ramshashi Roy AIR 1918 PC 102, a similar view had been taken by the Privy Council, referring to Illustration (f) of Section 114 of the Indian Evidence Act, 1872.

In view of the above, it was the responsibility of the complainants to prove by adducing evidence of the official of the Post Office, Kanpur that the said letter had not been delivered to them. {Para 33}

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 891 of 2004

Decided On: 11.11.2010

Sunil Kumar Sambhudayal Gupta and Ors. Vs. State of Maharashtra

Hon'ble Judges/Coram:

P. Sathasivam and B.S. Chauhan, JJ.

Author: B.S. Chauhan, J.

Citation: 2010 INSC 770,2011 ALLMR 288 (SC),MANU/SC/0947/2010.

Read full Judgment here: Click here.

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Is notice affixed on the door of premises valid if there is no proof that attempts were made to serve notice personally?

 Section 239 gives the procedure relating to authentication of service of a valid notice. It is provided by sub-s. (1) that every such notice may be served in the manner provided for the service of summons in the Civil Procedure Code so far as may be applicable. The High Court found that the notice under s. 129 had not been served in accordance with law and no proof was adduced by way of an affidavit of the process server or any other officer of the Municipality that any attempt was made to serve the notices on the petitioners personally. It cannot be and indeed it has not been disputed that notices were not served in accordance with the procedure prescribed for service of summons in the Civil Procedure Code. Even if we (1)-(Civil Appeal No. 493 of 1967) decided on 3.5.1972.accept what Dr. Singhvi says that there was a refusal to, accept the summons and that was the reason for effecting service by affixation the provisions of O.5, R.19 of the Code were not complied with by the filing of an affidavit of the serving officer etc. All that has been pointed out by Dr. Singhvi is that the notices were produced along with the writ petitions which showed that they had been affixed to the premises and that in' the writ petitions it was admitted that notices had been affixed on January 9, 1968 on the properties of the petitioners. We do not consider that any such averment dispensed with the requirement of the statutory provision contained in S. 239 of the Municipal Act in the matter of service of notices.

 Supreme Court of India

State Of Jammu And Kashmir & Ors vs Haji Wali Mohammed And Others on 8 August, 1972

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Whether court can raise presumption that notice was duly served even if defendant denies his signature on acknowledgment?

Validity of notice cannot be raised in view of provisions of Section 106 of the T.P. Act since the suit in the present case was filed after expiry of fifteen days period of giving notice. Though the appellant-defendant has denied receipt of any such notice but AD Receipt Ex. 4 was produced on record bearing signature of Mukesh Kumar, the proprietor of appellant firm. Mere objection on behalf of defendant that the signature on AD Receipt were not of Mukesh Kumar is of no avail and the learned trial Court, in absence of any application for examining the signature on AD Receipt from FSL, rightly found the notice under Section 106 of the T.P. Act duly served and, thus, there is no force in the submissions of the learned counsel for the appellant defendant with respect to the validity of notice under Section 106 of the T.P. Act and the eviction decree has rightly been passed by the learned trial Court against the defendant-appellant.

12. A close scrutiny of above-quoted sub-section (4) of Section 106 of the T.P. Act makes it abundantly clear that law envisages notice under sub-section (1) in writing, signed by or on behalf of the person giving it, and either it be sent by post to the party, who is intended to be bound by it, or to be tendered or delivered personally to such party. The oral and documentary evidence, which was available on record in the matter, is clear and unequivocal showing written notice sent by respondent-plaintiff to appellant-defendant. The respondent-plaintiff has also produced acknowledgment receipt Ex. 4 bearing signature of Mukesh Kumar. During cross-examination, proprietor of the appellant firm, Mukesh Kumar, has very candidly admitted correct address of the addressee, but for denying his signature. Bare denial of the signature, without substantiating the same by cogent evidence, is not sufficient to dislodge presumption about service of notice. Therefore, both the Courts below have rightly invoked Section 27 of the General Clauses Act, 1897, which envisages that unless the contrary is proved, service shall be deemed to have been effected by properly addressing, prepaying and posting by registered post, a letter containing the notice.

IN THE HIGH COURT OF RAJASTHAN

S.B. Civil Second Appeal No. 186 of 2018

Decided On: 06.10.2018

 Mishra Electronics  Vs.  Jagdish Kumar Jat

Hon'ble Judges/Coram:

Pratap Krishna Lohra, J.

Citation: 2019(1) RCR(Rent) 7

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When service of notice by ordinary post is not proved?

This Court finds that the petitioner-firm has categorically pleaded before this Court that the show cause notice dt. 14.09.2016 was not received by it and assuming the said notice was sent by the regular post, no presumption of service can be drawn.

31. This Court finds that the respondents by way of additional affidavit have tried to justify the service of the said notice dt. 14.09.2016 by producing xerox copy of the dispatch register and postage register on record. This Court finds that sending of notice by showing any dispatch register through ordinary post does not prove the fact of service of such notice on the petitioner-firm.

IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)

S.B. Civil Writs No. 17547/2016

Decided On: 19.01.2019

Agrofab Vs. State of Rajasthan and Ors.

Hon'ble Judges/Coram:

Ashok Kumar Gaur, J.

Citation: AIR 2019 Raj 34

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How to prove notice sent in PDF Format Delivered Through WhatsApp?

1)  The Respondent to the Execution Application has been

evading service of this Notice under Order XXI Rule 22 of the Code

of Civil Procedure 1908. He was served by an authorized officer of

the Claimant, Ms Fatema Kalyanwala by sending a PDF and

message to his mobile number as a WhatsApp message. For the

purposes of service of Notice under Order XXI Rule 22, I will

accept this. I do so because the icon indicators clearly show that not

only was the message and its attachment delivered to the

Respondent’s number but that both were opened.

2)  A print-out of the WhatApp message is taken on record and

marked “N” for identification with today’s date. The second print

out is of the WhatsApp contact number of the Respondent. This

shows his contact number. This is also taken on record and marked

“N2” for identification with today’s date. This is sufficient for the

purposes of service of Notice under Order XXI Rule 22.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

NOTICE NO. 1148 OF 2015

IN

EXECUTION APPLICATION NO. 1196 OF 2015

SBI Cards & Payments Services Pvt Ltd  V Rohidas Jadhav.

CORAM: G.S. PATEL, J

DATED: 11th June 2018, 

Citation: 2018 SCC OnLine Bom 1262

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Whether proper service of notice can be presumed if postal remark is "House locked" and "shop closed"?

In view of the office report, it would be clear that the respondents obviously managed to have the notice returned with postal remarks "not available in the house", "House locked" and "shop closed" respectively. In that view, it must be deemed that the notices have been served on the respondents.

Supreme Court of India

The State Of Madhya Pradesh vs Hiralal & Ors on 15 January, 1996

Equivalent citations: JT 1996 (1), 669 1996 SCALE (1)SP35

BENCH:
RAMASWAMY, K.
G.B. PATTANAIK (J)

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Whether due service of notice can be presumed when it is returned endorsement "refused" or "not available in the house"?

This Court in catena of cases has held that when a notice is sent by registered post and is returned with postal endorsement "refused" or "not available in the house" or "house locked" or "shop closed" or "addressee not in station", due service has to be presumed.

SUPREME COURT OF INDIA

N. Paraeswaran Unni Vs. G. Kannan and Another

[Criminal Appeal No 455 of 2006]

N.V. Ramana, j.

Dated:1st March, 2017.

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Whether prosecution for dishonour of cheque can be quashed on ground that notice was not served on accused?

Hon‟ble Supreme Court in the case V. Raja Kumari Versus P.
Subbarama Naidu & Anr. (2004) 8 SCC 774 while considering a similar
issue in which after dismissal of the complaint by trial court on the
ground that service of notice under Section 138 of the Act was  
mandatory and mere sending of notice was not sufficient, upheld the
order passed by the High Court that non-service of notice was not a
ground for rejecting the complaint and that the effect thereof was to be
considered during trial, and dismissed the appeal filed before Hon'ble
Supreme Court holding that the burden was on the complainant to
show that the accused had managed to get an incorrect endorsement
made but the effect of it has to be considered during trial.
7. In the instant case, the court took cognizance of the offence
considering prima facie material on record, hence, at the very threshold,
the entire complaint case cannot be thrown out on the mere
endorsement of the postal peon “always door locked” and the same in
view of the mandates given by the Hon‟ble Supreme court in the above
case that the effect of the endorsement shall be considered during trial,
I am not inclined to interfere in the order impugned taking cognizance
as well as in the entire criminal proceeding.
 IN THE HIGH COURT OF JHARKHAND AT RANCHI
 Cr. M. P. No.3418 of 2013

Mrs. Rita Kumari, 
 V
The State of Jharkhand

CORAM: HON'BLE MR. JUSTICE RAVI NATH VERMA

Dated:- 17.05.2016
Citation: 2016 ALLMR(CRI)JOURNAL 471

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Whether case for dishonour of cheque is maintainable if notice is returned with remark 'Not claimed'?

 Since in Bhaskaran's case (supra), the notice issued in terms of Clause (b) had been returned unclaimed and not as refused, the Court posed the question: 'Will there be any significant difference between the two so far as the presumption of service is concerned?' It was observed that though Section 138 of the Act does not require that the notice should be given only by 'post', yet in a case where the sender has dispatched the notice by post with correct address written on it, the principle incorporated in Section 27 of the General Clauses Act, 1897 (for short 'G.C. Act') could profitably be imported in such a case. It was held that in this situation service of notice is deemed to have been effected on the sender unless he proves that it was not really served and that he was not responsible for such non-service.

Equivalent Citation: 2013(3)ABR860, 2014ALLMR(Cri)1836, 2013(2)BomCR(Cri)502, 2013CriLJ2415, 2013(2)Crimes576(Bom.), 2013(6)MhLj147

IN THE HIGH COURT OF BOMBAY

Criminal Revision Application No. 435 of 2011

Decided On: 03.04.2013

 Rekha Mahindra Shah Vs. Gautam Umed Parmar and The State of Maharashtra

Hon'ble Judges/Coram:S.C. Dharmadhikari, J.

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Distinction between non- service of notice and notice though served but with procedural irregularities in serving

 In our considered opinion, there lies a distinction between non- service of notice and a notice though served but with some kind of procedural irregularities in serving. In the case of former category of cases, all consequential action, if taken would be rendered bad in law once the fact of non-service is proved whereas in the case of later category of cases, the consequential action, if taken would be sustained.

It is for the reason that in the case of former, since the notice was not served on the person concerned he was completely unaware of the proceedings which were held behind his back thereby rendering the action "illegal" whereas in the case of later, he was otherwise aware of the proceedings having received the notice though with procedural irregularity committed in making service of such notice on him.

If a person has a knowledge of the action proposed in the notice, then the action taken thereon cannot be held as being bad in law by finding fault in the manner of effecting service unless he is able to show substantial prejudice caused to him due to procedural lapse in making service on him. It, however, depends upon individual case to case to find out the nature of procedural lapse complained of and the resultant prejudice caused.
SUPREME COURT OF INDIA

Sri Prabin Ram Phukan & ANR. Vs. State of Assam & Ors.

[Civil Appeal Nos. 662-663 of 2008]

Citation; (2015) 3 SCC605

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Whether there is proper service of notice in cheque dishonour case when there is postal endorsement of refused?

This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement refused or not available in the house or house locked or shop closed or addressee not in station , due service has to be presumed. [Vide Jagdish Singh Vs. Natthu Singh ; State of M.P. Vs. Hiralal & Ors. and V.Raja Kumari Vs. P.Subbarama Naidu & Anr. ] It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved.

Supreme Court of India

C.C. Alavi Haji vs Palapetty Muhammed & Anr on 18 May, 2007

Bench: Cji K.G. Balakrishnan, R.V. Raveendran, D.K. Jain

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Distinction between non service of notice and procedural lapse in service of notice

In our considered opinion, there lies a distinction between non- service of notice and a notice though served but with some kind of procedural irregularities in serving. In the case of former category of cases, all consequential action, if taken would be rendered bad in law once the fact of non-service is proved whereas in the case of later category of cases, the consequential action, if taken would be sustained.

It is for the reason that in the case of former, since the notice was not served on the person concerned he was completely unaware of the proceedings which were held behind his back thereby rendering the action "illegal" whereas in the case of later, he was otherwise aware of the proceedings having received the notice though with procedural irregularity committed in making service of such notice on him.

If a person has a knowledge of the action proposed in the notice, then the action taken thereon cannot be held as being bad in law by finding fault in the manner of effecting service unless he is able to show substantial prejudice caused to him due to procedural lapse in making service on him. It, however, depends upon individual case to case to find out the nature of procedural lapse complained of and the resultant prejudice caused. The case in hand falls in former category of case.
SUPREME COURT OF INDIA

Sri Prabin Ram Phukan & ANR. Vs. State of Assam & Ors.

[Civil Appeal Nos. 662-663 of 2008]

Citation;2015) 3 SCC 605.

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What is Presumption regarding service of notice u/s 138 of NI Act?

 Section 27 gives rise to a presumption that service of 

notice has been effected when it is sent to the correct address by registered post. In view of the said 

presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to 

have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course 

of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement 'refused' or 'not available in the house' or 'house locked' or 'shop closed' or 'addressee not in station', due service has to be presumed. [Vide Jagdish Singh v. Natthu Singh, AIR 1992 SC 1604; State of M.P . v. Hiralal and Ors. [1996] 1 SCR 480 and ,

V. Raja Kumari v. P . Subbarama Naidu and Anr., 2005 Cri.L.J. 127]. It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is

not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the

return of the notice unserved.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

CRIMINAL REVISION APPLICATION NO.435 OF 2011 

Rekha Mahindra Shah V Gautam Umed Parmar

CORAM : S.C. DHARMADHIKARI, J. 

PRONOUNCED ON : 3RD APRIL, 2013 .1

Citation; 2013 (6) MH L J 147

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Whether Notice given by Advocate without his signature is valid in the eyes of law?

The object of issuing notice is absolutely clear from the reading of Sec. 138. The object and purpose is to give an information to the person who had issued the cheque that the said cheque was dishonored, so as to facilitate him to make good the amount within 15 days from the date of receipt of such information from the holder of the cheque. Whether that purpose is achieved is the only question that arises for consideration. Similar is the object under S. 80 of the CPC, wherein the Government should be given notice of 2 months, so as to settle the claim of the person who has got issued the notice. In this case also, the advocate has given full description of the respondent and he has also stated the particulars of the cheque and also the fact that the same was dishonored by the bank when presented by the respondent for want of sufficient funds and he also requested him to pay that amount within 15 days failing which he would proceed against him under Sec. 138 of the Act, etc. From this detailed description it is abundantly clear that the petitioner had come to know of the purpose for which the notice was issued by the advocate. Therefore, the learned advocate had satisfied all the necessary ingredients of Section 138 of the Act, but only by mistake he had not signed the notice. Therefore, that itself would not in any way lead to come to a conclusion that the notice issued by the advocate without his signature is invalid in the eye of law. Hence, the argument of the learned counsel for the petr. is unsustainable.

Karnataka High Court

Sri Satyanarayana Gowda vs V.B. Rangappa on 7 February, 1996

Equivalent citations: 1997 88 CompCas 433 a Kar, 1996 CriLJ 2264

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