{"id":216468,"date":"2007-05-18T00:00:00","date_gmt":"2007-05-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/c-c-alavi-haji-vs-palapetty-muhammed-anr-on-18-may-2007"},"modified":"2015-05-05T14:13:26","modified_gmt":"2015-05-05T08:43:26","slug":"c-c-alavi-haji-vs-palapetty-muhammed-anr-on-18-may-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/c-c-alavi-haji-vs-palapetty-muhammed-anr-on-18-may-2007","title":{"rendered":"C.C. Alavi Haji vs Palapetty Muhammed & Anr on 18 May, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
C.C. Alavi Haji vs Palapetty Muhammed & Anr on 18 May, 2007<\/div>\n
Author: D Jain<\/div>\n
Bench: Cji K.G. Balakrishnan, R.V. Raveendran, D.K. Jain<\/div>\n
           CASE NO.:\nAppeal (crl.)  767 of 2007\n\nPETITIONER:\nC.C. ALAVI HAJI\n\nRESPONDENT:\nPALAPETTY MUHAMMED & ANR.\n\nDATE OF JUDGMENT: 18\/05\/2007\n\nBENCH:\nCJI K.G. BALAKRISHNAN,R.V. RAVEENDRAN & D.K. JAIN\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\n[Arising out of S.L.P. (Criminal) No. 3910 of 2006)<\/p>\n
D.K. JAIN, J.:\n<\/p>\n
\tLeave granted.\n<\/p>\n
2.\t \tThe matter has been placed before the three Judge Bench
\nin view of a Reference made by a two-Judge Bench of this
\nCourt, pertaining to the question of service of notice in terms
\nof Clause (b) of proviso to Section 138 of the Negotiable
\nInstruments Act, 1881 (in short The Act).  Observing that
\nwhile rendering the decision in D. Vinod Shivappa Vs.
\nNanda Belliappa , this Court has not taken into
\nconsideration the presumption in respect of an official act as
\nprovided under Section 114 of the Indian Evidence Act, 1872,
\nthe following question has been referred for consideration of
\nthe larger Bench:\n<\/p>\n
\tWhether in absence of any averments in the complaint
\nto the effect that the accused had a role to play in the matter
\nof non-receipt of legal notice; or that the accused deliberately
\navoided service of notice, the same could have been
\nentertained keeping in view the decision of this Court in Vinod
\nShivappas case (supra)?\n<\/p>\n
3.\t \tAs it hardly needs emphasis that necessary averments in
\nregard to the mode and the manner of compliance with the
\nmandatory requirements of Section 138 of the Act are required
\nto be made in the complaint, from the format of the question,
\nthe scope of controversy appears to lie in a narrow compass
\nbut bearing in mind the fact that the issue raised has wider
\nimplication with regard to the very maintainability of the
\ncomplaint itself, we deem it necessary to deal with the issue in
\nlittle more detail.\n<\/p>\n
4.\t \tChapter XVII of the Act originally containing Sections 138
\nto 142 was inserted in the Act by the Banking, Public
\nFinancial Institutions and Negotiable Instruments Laws
\n(Amendment) Act, 1988 with the object of promoting and
\ninculcating faith in the efficacy of banking system and its
\noperations and giving credibility to negotiable instruments in
\nbusiness transaction.  The introduction of the said Chapter
\nwas intended to create an atmosphere of faith and reliance on
\nbanking system by discouraging people from not honouring
\ntheir commitments by way of payment through cheques.
\nSection 138 of the Act was enacted to punish those
\nunscrupulous persons who purported to discharge their
\nliability by issuing cheques without really intending to do so.
\nTo make the provisions contained in the said Chapter more
\neffective, some more Sections were inserted in the Chapter and
\nsome amendments in the existing provisions were made.
\nThough, in this reference, we are not directly concerned with
\nthese amendments but they do indicate the anxiety of the
\nLegislature to make the provisions more result oriented.
\nTherefore, while construing the provision, the object of the
\nlegislation has to be borne in mind.\n<\/p>\n
5.\t \tAs noted above, the controversy arises in the context of
\nservice of notice in terms of Section 138 of the Act.  The
\nconditions pertaining to the notice to be given to the drawer,
\nhave been formulated and incorporated in Clauses (b) and (c)
\nof the proviso to Section 138 of the Act, which read as follows:
\nProvided that nothing contained in this
\nsection shall apply unless\n<\/p>\n
(a)\n<\/p>\n
(b)\tthe payee or the holder in due
\ncourse of the cheque, as the case
\nmay be, makes a demand for the
\npayment of the said amount of
\nmoney by giving a notice in writing,
\nto the drawer of the cheque, of the
\nreceipt of information by him from
\nthe bank regarding the return of the
\ncheque as unpaid; and\n<\/p>\n
(c)\tthe drawer of such cheque fails to
\nmake the payment of the said
\namount of money to the payee or, as
\nthe case may be, to the holder in
\ndue course of the cheque, within
\nfifteen days of the receipt of the said
\nnotice.<\/p>\n
6.\t \tAs noted hereinbefore, Section 138 of the Act was
\nenacted to punish unscrupulous drawers of cheques who,
\nthough purport to discharge their liability by issuing cheque,
\nhave no intention of really doing so.  Apart from civil liability,
\ncriminal liability is sought to be imposed by the said provision
\non such unscrupulous drawers of cheques.  However, with a
\nview to avert unnecessary prosecution of an honest drawer of
\nthe cheque and with a view to give an opportunity to him to
\nmake amends, the prosecution under Section 138 of the Act
\nhas been made subject to certain conditions.  These conditions
\nare stipulated in the proviso to Section 138 of the Act,
\nextracted above.  Under Clause (b) of the proviso, the payee or
\nthe holder of the cheque in due course is required to give a
\nwritten notice to the drawer of the cheque within a period of
\nthirty days from the date of receipt of information from the
\nbank regarding the return of the cheque as unpaid.  Under
\nClause (c), the drawer is given fifteen days time from the date
\nof receipt of the notice to make the payment and only if he
\nfails to make the payment, a complaint may be filed against
\nhim.  As noted above, the object of the proviso is to avoid
\nunnecessary hardship to an honest drawer.  Therefore, the
\nobservance of stipulations in quoted Clause (b) and its
\naftermath in Clause (c) being a pre-condition for invoking
\nSection 138 of the Act, giving a notice to the drawer before
\nfiling complaint under Section 138 of the Act is a mandatory
\nrequirement.\n<\/p>\n
7.\t \tThe issue with regard to interpretation of the expression
\ngiving of notice used in Clause (b) of the proviso is no more
\nres integra.  In K. Bhaskaran Vs. Sankaran Vaidhyan
\nBalan & Anr. , the said expression came up for
\ninterpretation. Considering the question with particular
\nreference to scheme of Section 138 of the Act, it was held that
\nfailure on the part of the drawer to pay the amount should be
\nwithin fifteen days of the receipt of the said notice.  Giving
\nnotice in the context is not the same as receipt of notice.
\nGiving is a process of which receipt is the accomplishment.  It
\nis for the payee to perform the former process by sending the
\nnotice to the drawer at the correct address and for the drawer
\nto comply with Clause (c) of the proviso.  Emphasizing that the
\nprovisions contained in Section 138 of the Act required to be
\nconstrued liberally, it was observed thus:
\nIf a strict interpretation is given that the
\ndrawer should have actually received the
\nnotice for the period of 15 days to start
\nrunning no matter that the payee sent
\nthe notice on the correct address, a
\ntrickster cheque drawer would get the
\npremium to avoid receiving the notice by
\ndifferent strategies and he could escape
\nfrom the legal consequences of Section
\n138 of the Act. It must be borne in mind
\nthat Court should not adopt an
\ninterpretation which helps a dishonest
\nevader and clips an honest payee as that
\nwould defeat the very legislative measure.
\nIn Maxwell’s Interpretation of Statues the
\nlearned author has emphasized that
\n“provisions relating to giving of notice
\noften receive liberal interpretation,” (vide
\npage 99 of the 12th Edn.) The context
\nenvisaged in Section 138 of the Act
\ninvites a liberal interpretation for the
\nperson who has the statutory obligation
\nto give notice because he is presumed to
\nbe the loser in the transaction and it is
\nfor his interest the very provision is made
\nby the legislature. The words in Clause\n<\/p>\n
(b) of the proviso to Section 138 of the Act
\nshow that payee has the statutory
\nobligation to make a demand by giving
\nnotice. The thrust in the clause is on the
\nneed to make a demand. It is only the
\nmode for making such demand which the
\nlegislature has prescribed. A payee can
\nsend the notice for doing his part for
\ngiving the notice. Once it is dispatched
\nhis part is over and the next depends on
\nwhat the sendee does.<\/p>\n
8.\tSince in Bhaskarans case (supra), the notice issued in
\nterms of Clause (b) had been returned unclaimed and not as
\nrefused, the Court posed the question: Will there be any
\nsignificant difference between the two so far as the
\npresumption of service is concerned?  It was observed that
\nthough Section 138 of the Act does not require that the notice
\nshould be given only by post, yet in a case where the sender
\nhas dispatched the notice by post with correct address written
\non it, the principle incorporated in Section 27 of the General
\nClauses Act, 1897 (for short G.C. Act) could profitably be
\nimported in such a case.  It was held that in this situation
\nservice of notice is deemed to have been effected on the sendee
\nunless he proves that it was not really served and that he was
\nnot responsible for such non-service.\n<\/p>\n
9.\tAll these aspects have been highlighted and reiterated by
\nthis Court recently in Vinod Shivappas case (supra).
\nElaborately dealing with the situation where the notice could
\nnot be served on the addressee for one or the other reason,
\nsuch as his non availability at the time of delivery, or premises
\nremaining locked on account of his having gone elsewhere etc;
\nit was observed that if in each such case, the law is
\nunderstood to mean that there has been no service of notice, it
\nwould completely defeat the very purpose of the Act.  It would
\nthen be very easy for an unscrupulous and dishonest drawer
\nof a cheque to make himself scarce for sometime after issuing
\nthe cheque so that the requisite statutory notice can never be
\nserved upon him and consequently he can never be
\nprosecuted.  It was further observed that once the payee of the
\ncheque issues notice to the drawer of the cheque, the cause of
\naction to file a complaint arises on the expiry of the period
\nprescribed for payment by the drawer of the cheque.  If he
\ndoes not file a complaint within one month of the date on
\nwhich the cause of action arises under Clause (c) of the
\nproviso to Section 138 of the Act, his complaint gets barred by
\ntime. Thus, a person who can dodge the postman for about a
\nmonth or two, or a person who can get a fake endorsement
\nmade regarding his non availability, can successfully avoid his
\nprosecution because the payee is bound to issue notice to him
\nwithin a period of 30 days from the date of receipt of
\ninformation from the bank regarding the return of the cheque
\nas unpaid. He is, therefore, bound to issue the notice, which
\nmay be returned with an endorsement that the addressee is
\nnot available on the given address.  This Court held:
\nWe cannot also lose sight of the fact that
\nthe drawer may by dubious means
\nmanage to get an incorrect endorsement
\nmade on the envelope that the premises
\nhas been found locked or that the
\naddressee was not available at the time
\nwhen postman went for delivery of the
\nletter. It may be that the address is
\ncorrect and even the addressee is
\navailable but a wrong endorsement is
\nmanipulated by the addressee. In such a
\ncase, if the facts are proved, it may
\namount to refusal of the notice. If the
\ncomplainant is able to prove that the
\ndrawer of the cheque knew about the
\nnotice and deliberately evaded service
\nand got a false endorsement made only to
\ndefeat the process of law, the Court shall
\npresume service of notice. This, however,
\nis a matter of evidence and proof. Thus
\neven in a case where the notice is
\nreturned with the endorsement that the
\npremises has always been found locked
\nor the addressee was not available at the
\ntime of postal delivery, it will be open to
\nthe complainant to prove at the trial by
\nevidence that the endorsement is not
\ncorrect and that the addressee, namely
\nthe drawer of the cheque, with knowledge
\nof the notice had deliberately avoided to
\nreceive notice. Therefore, it would be pre-
\nmature at the stage of issuance of
\nprocess, to move the High Court for
\nquashing of the proceeding under Section
\n482 of the Code of Criminal Procedure.\n<\/p>\n
The question as to whether the service of
\nnotice has been fraudulently refused by
\nunscrupulous means is a question of fact
\nto be decided on the basis of evidence. In
\nsuch a case the High Court ought not to
\nexercise its jurisdiction under Section
\n482 of the Code of Criminal Procedure<\/p>\n
10.\tIt is, thus, trite to say that where the payee dispatches
\nthe notice by registered post with correct address of the
\ndrawer of the cheque, the principle incorporated in Section 27
\nof the G.C. Act would be attracted; the requirement of Clause\n<\/p>\n
(b) of proviso to Section 138 of the Act stands complied with
\nand cause of action to file a complaint arises on the expiry of
\nthe period prescribed in Clause (c) of the said proviso for
\npayment by the drawer of the cheque.  Nevertheless, it would
\nbe without prejudice to the right of the drawer to show that he
\nhad no knowledge that the notice was brought to his address.\n<\/p>\n
11.\tHowever, the Referring Bench was of the view that this
\nCourt in Vinod Shivappas case (supra) did not take note of
\nSection 114 of Evidence Act in its proper perspective.  It felt
\nthat the presumption under Section 114 of the Evidence Act
\nbeing a rebuttable presumption, the complaint should contain
\nnecessary averments to raise the presumption of service of
\nnotice; that it was not sufficient for a complainant to state that
\na notice was sent by registered post and that the notice was
\nreturned with the endorsement out of station; and that there
\nshould be a further averment that the addressee-drawer had
\ndeliberately avoided receiving the notice or that the addressee
\nhad knowledge of the notice, for raising a presumption under
\nSection 114 of Evidence Act.\n<\/p>\n
12.\tTherefore, the moot question requiring consideration is in
\nregard to the implication of Section 114 of the Indian Evidence
\nAct, 1872 insofar as the service of notice under the said
\nproviso is concerned.  Section 114 of the Indian Evidence Act,
\n1872 reads as follows:\n<\/p>\n
Section 114 – Court may presume
\nexistence of certain facts.- The Court
\nmay presume the existence of any fact
\nwhich it thinks likely to have happened.
\nregard being had to the common course
\nof natural events human conduct and
\npublic and private business, in their
\nrelation to the facts of the particular case.
\nIllustrations
\n     The Court may presume<\/p>\n
(f) That the common course of business
\nhas been followed in particular cases;<\/p>\n
13.\tAccording to Section 114 of the Act, read with illustration\n<\/p>\n
(f) thereunder, when it appears to the Court that the common
\ncourse of business renders it probable that a thing would
\nhappen, the Court may draw presumption that the thing
\nwould have happened, unless there are circumstances in a
\nparticular case to show that the common course of business
\nwas not followed.  Thus, Section 114 enables the Court to
\npresume the existence of any fact which it thinks likely to have
\nhappened, regard being had to the common course of natural
\nevents, human conduct and public and private business in
\ntheir relation to the facts of the particular case.  Consequently,
\nthe court can presume that the common course of business
\nhas been followed in particular cases.  When applied to
\ncommunications sent by post, Section 114 enables the Court
\nto presume that in the common course of natural events, the
\ncommunication would have been delivered at the address of
\nthe addressee.  But the presumption that is raised under
\nSection 27 of the G.C. Act is a far stronger presumption.
\nFurther, while Section 114 of Evidence Act refers to a general
\npresumption, Section 27 refers to a specific presumption.  For
\nthe sake of ready reference, Section 27 of G.C. Act is extracted
\nbelow:\n<\/p>\n
27. Meaning of service by post. –\n<\/p>\n
Where any Central Act or Regulation
\nmade after the commencement of this Act
\nauthorizes or requires any document to
\nbe served by post, whether the expression
\nserve or either of the expressions give
\nor send or any other expression is used,
\nthen, unless a different intention
\nappears, the service shall be deemed to
\nbe effected by properly addressing, pre-
\npaying and posting by registered post, a
\nletter containing the document, and,
\nunless the contrary is proved, to have
\nbeen effected at the time at which the
\nletter would be delivered in the ordinary
\ncourse of post.\n<\/p>\n
14.\tSection 27 gives rise to a presumption that service of
\nnotice has been effected when it is sent to the correct address
\nby registered post.  In view of the said presumption, when
\nstating that a notice has been sent by registered post to the
\naddress of the drawer, it is unnecessary to further aver in the
\ncomplaint that in spite of the return of the notice unserved, it
\nis deemed to have been served or that the addressee is deemed
\nto have knowledge of the notice.  Unless and until the contrary
\nis proved by the addressee, service of notice is deemed to have
\nbeen effected at the time at which the letter would have been
\ndelivered in the ordinary course of business.  This Court has
\nalready held that when a notice is sent by registered post and
\nis returned with a postal endorsement refused or  not
\navailable in the house or house locked or shop closed or
\naddressee not in station, due service has to be presumed.
\n[Vide Jagdish Singh Vs. Natthu Singh ; State of M.P. Vs.
\nHiralal & Ors.  and V.Raja Kumari Vs. P.Subbarama
\nNaidu & Anr. ]  It is, therefore, manifest that in view of the
\npresumption available under Section 27 of the Act, it is not
\nnecessary to aver in the complaint under Section 138 of the
\nAct that service of notice was evaded by the accused or that
\nthe accused had a role to play in the return of the notice
\nunserved.\n<\/p>\n
15.\tInsofar as the question of disclosure of necessary
\nparticulars with regard to the issue of notice in terms of
\nproviso (b) of Section 138 of the Act, in order to enable the
\nCourt to draw presumption or inference either under Section
\n27 of the G.C. Act or Section 114 of the Evidence Act, is
\nconcerned, there is no material difference between the two
\nprovisions.  In our opinion, therefore, when the notice is sent
\nby registered post by correctly addressing the drawer of the
\ncheque, the mandatory requirement of issue of notice in terms
\nof Clause (b) of proviso to Section 138 of the Act stands
\ncomplied with.  It is needless to emphasise that the complaint
\nmust contain basic facts regarding the mode and manner of
\nthe issuance of notice to the drawer of the cheque. It is well
\nsettled that at the time of taking cognizance of the complaint
\nunder Section 138 of the Act, the Court is required to be prima
\nfacie satisfied that a case under the said Section is made out
\nand the aforenoted mandatory statutory procedural
\nrequirements have been complied with.  It is then for the
\ndrawer to rebut the presumption about the service of notice
\nand show that he had no knowledge that the notice was
\nbrought to his address or that the address mentioned on the
\ncover was incorrect or that the letter was never tendered or
\nthat the report of the postman was incorrect.  In our opinion,
\nthis interpretation of the provision would effectuate the object
\nand purpose for which proviso to Section 138 was enacted,
\nnamely, to avoid unnecessary hardship to an honest drawer of
\na cheque and to provide him an opportunity to make amends.\n<\/p>\n
16.\tAs noticed above, the entire purpose of requiring a notice
\nis to give an opportunity to the drawer to pay the cheque
\namount within 15 days of service of notice and thereby free
\nhimself from the penal consequences of Section 138.  In Vinod
\nShivappa (supra), this Court observed:
\nOne can also conceive of cases where a
\nwell intentioned drawer may have
\ninadvertently missed to make necessary
\narrangements for reasons beyond his
\ncontrol, even though he genuinely
\nintended to honour the cheque drawn by
\nhim. The law treats such lapses induced
\nby inadvertence or negligence to be
\npardonable, provided the drawer after
\nnotice makes amends and pays the
\namount within the prescribed period. It is
\nfor this reason that Clause (c) of proviso
\nto Section 138 provides that the section
\nshall not apply unless the drawer of the
\ncheque fails to make the payment within
\n15 days of the receipt of the said notice.
\nTo repeat, the proviso is meant to protect
\nhonest drawers whose cheques may have
\nbeen dishonoured for the fault of others,
\nor who may have genuinely wanted to
\nfulfil their promise but on account of
\ninadvertence or negligence failed to make
\nnecessary arrangements for the payment
\nof the cheque. The proviso is not meant to
\nprotect unscrupulous drawers who never
\nintended to honour the cheques issued
\nby them, it being a part of their modus
\noperandi to cheat unsuspecting persons.<\/p>\n
17.\tIt is also to be borne in mind that the requirement of
\ngiving of notice is a clear departure from the rule of Criminal
\nLaw, where there is no stipulation of giving of a notice before
\nfiling a complaint.  Any drawer who claims that he did not
\nreceive the notice sent by post, can, within 15 days of receipt
\nof summons from the court in respect of the complaint under
\nSection 138 of the Act, make payment of the cheque amount
\nand submit to the Court that he had made payment within 15
\ndays of receipt of summons (by receiving a copy of complaint
\nwith the summons) and, therefore, the complaint is liable to be
\nrejected.  A person who does not pay within 15 days of receipt
\nof the summons from the Court along with the copy of the
\ncomplaint under Section 138 of the Act, cannot obviously
\ncontend that there was no proper service of notice as required
\nunder Section 138, by ignoring statutory presumption to the
\ncontrary under Section 27 of the G.C. Act and Section 114 of
\nthe Evidence Act. In our view, any other interpretation of the
\nproviso would defeat the very object of the legislation.  As
\nobserved in Bhaskarans case (supra), if the giving of notice
\nin the context of Clause (b) of the proviso was the same as the
\nreceipt of notice a trickster cheque drawer would get the
\npremium to avoid receiving the notice by adopting different
\nstrategies and escape from legal consequences of Section 138
\nof the Act.\n<\/p>\n
18.\tIn the instant case, the averment made in the complaint
\nin this regard is: Though the complainant issued lawyers
\nnotice intimating the dishonour of cheque and demanded
\npayment on 4.8.2001, the same was returned on 10.8.2001
\nsaying that the accused was out of station.  True, there was
\nno averment to the effect that the notice was sent at the
\ncorrect address of the drawer of the cheque by registered post
\nacknowledgement due.  But the returned envelope was
\nannexed to the complaint and it thus, formed a part of the
\ncomplaint which showed that the notice was sent by registered
\npost acknowledgement due to the correct address and was
\nreturned with an endorsement that the addressee was
\nabroad.  We are of the view that on facts in hand the
\nrequirements of Section 138 of the Act had been sufficiently
\ncomplied with and the decision of the High Court does not call
\nfor interference.\n<\/p>\n
19.\tIn the final analysis, with the clarification indicated
\nhereinabove, we reiterate the view expressed by this Court in
\nK. Bhaskaran and Vinod Shivappas cases (supra).\n<\/p>\n
20.\tFor the reasons aforementioned, we do not find any merit
\nin this appeal.  It is dismissed accordingly but with no order
\nas to costs in the circumstances of the case.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India C.C. Alavi Haji vs Palapetty Muhammed & Anr on 18 May, 2007 Author: D Jain Bench: Cji K.G. Balakrishnan, R.V. Raveendran, D.K. Jain CASE NO.: Appeal (crl.) 767 of 2007 PETITIONER: C.C. ALAVI HAJI RESPONDENT: PALAPETTY MUHAMMED & ANR. DATE OF JUDGMENT: 18\/05\/2007 BENCH: CJI K.G. BALAKRISHNAN,R.V. RAVEENDRAN & D.K. JAIN […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-216468","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nC.C. 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