Serving notice is critical in legal proceedings. Due process requires that legal action cannot be taken against anyone unless the requirements of notice and an opportunity to be heard are observed. Legal proceedings are initiated by providing notice to the party concerned. If an individual is accused of a crime, he has a right to be notified of the charges. In addition, formal papers must be prepared to give the accused notice of the charges. An individual who is being sued in a civil action must be provided with notice of the nature of the suit.
As per Section 27 of the General Clauses Act, 1897, service of notice can be presumed in respect of a letter containing a document which was addressed prepaid and posted by registered post. In Alavi Haji’s case, the full bench of the Supreme Court has held that when the notice was sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of clause (b) of proviso to Section 138 of the Act stands complied with.
In a case before the High Court, the accused person borrowed a sum of Rs 1.5 lakh from another person (complainant) for his urgent necessities and executed a bond in favour of the latter agreeing to repay the debt amount with interest. After few months the accused issued a cheque for Rs 1.25 lakh towards part payment of the total debt.
When the said cheque was presented in the bank, the same was dishonoured due to insufficient funds. Therefore, the complainant issued legal notice to the accused and the same was returned with postal acknowledgement that the “addressee is continuously absent, hence sent to the sender”.
Not maintainable
When a complaint was lodged, the magistrate concerned took cognizance of it against the accused for the offence under Section 138 of Negotiable Instruments Act, 1881 and registered the case. Though it was held that there was no material alteration with regard to date in the bond paper as alleged and that cheque was issued by the accused to discharge the legally enforceable debt, the trial court dismissed the complaint on the ground that complainant could not prove issuance of statutory notice under Section 138(b) of NI Act and therefore, complaint was not maintainable and accordingly, acquitted the accused. Aggrieved with the same, the complainant filed an appeal before the High Court.
The counsel for the appellant/complainant told the High Court that the address mentioned in the registered postal cover, the address mentioned in the complaint as well as address mentioned in the summons sent to the accused was one and the same. The accused earlier received the court summons and appeared and contested the criminal case. Whereas the notice was returned with the endorsement “addressee is continuously absent for seven days, hence returned to the sender”.
Therefore, it is evident that though the accused was a resident of the same address for long, he managed it to see that the notice cover was not served on him and returned to the complainant. In those circumstances, the trial court ought to have drawn a presumption that notice was duly served on the accused. When the complainant was able to establish that the statutory notice under the Act was sent to the correct address of the accused, a presumption can be drawn that the notice has been received by the accused in spite of the fact that it was not actually received by him, he argued.
Service of notice
After hearing the case and perusing the material on record, the HC found that the accused had earlier received the court summons and appeared and contested the criminal case. Hence, the complainant could establish that the statutory notice under Section 138(b) of NI Act was sent to the accused to the correct address. Therefore, service of the notice to the accused can be presumed under Section 27 of General Clauses Act, 1897, the court noted.
Relying on the Apex Court judgment in N Parameswaran Unni’s case, the High Court said it was clear that in the instant case service of notice on accused was a presumed fact, which was not rebutted by the accused. Hence, the mandatory requirement under Section 138(b) of NI Act was amply complied with. In such circumstances, the finding of the trial court that the complainant could not serve the notice under the Act on accused is unsustainable, the Court observed.
The High Court allowed the appeal by setting aside the order of the trial court and convicted the accused for the offence under Sec 138 of NI Act. The court directed the accused to pay a fine of Rs 1.5 lakh and on deposit of the fine amount, the same should be paid to the appellant/complainant as compensation.