Hrishikesh Roy, J.— Heard Mr. R. Baruah, learned counsel for the petitioner. The opposite party (complain ant) is represented by Mr. J. Deka, learned counsel. 2. This pertains to a proceeding under Section 13 8 of the Negotiable Instruments Act (hereinafter referred to as the "NI Act"). A complaint was filed on 18.3.2004 by the op posite party and in response to the summon issued by the learned Judicial Magistrate, 1st Class, Kamrup, Guwahati, the petitioner ap peared in Court on 19.5.2004. Thereafter evidence from the complainant side was re corded. 3. Subsequently on 26.7.2005 the state ment of the accused was recorded when the accused for the first time disputed his signa ture on the acknowledgment (Exhibit-11) and applied for forensic examination of the signa ture on the acknowledgement. This was fol lowed by an application on 8.6.2007 where it was contended that service of notice under proviso (b) to Section 138 of the NI Act is yet to be proved and accordingly condition precedent for taking cognizance of the offence was absent. Prayer was accordingly made for discharge of the accused and dismissal of the complaint case. 4. The learned Judicial Magistrate, 1st Class by his order dated 20.3.2008 held that when notice was sent by registered post in the correct address of the drawer of the cheque, the mandatory requirement of issu ing notice under proviso(b) of Section 13 8 of the NI Act has been fulfilled and accordingly, the application for discharge of the accused was dismissed. 5. The accused preferred the Revision Application i.e. Criminal Revision No.46/08 against the order of the learned Magistrate and by the impugned judgment dated 11.3.2011, the learned Addl. District Judge (FTC) No. 1, Kamrup held that since notice was sent in the correct address of the accused by registered post and the same was not un der challenge, reasonable presumption can be drawn that the notice was delivered to the addressee. Accordingly, the Court declared that due compliance of the requirement of Section 138 of the NI Act was made and accordingly the accused petitioner's Revision Petition was dismissed and the order passed on 20.3.2008 by the learned trial Court was affirmed. 6.1 Mr.
Accordingly, the Court declared that due compliance of the requirement of Section 138 of the NI Act was made and accordingly the accused petitioner's Revision Petition was dismissed and the order passed on 20.3.2008 by the learned trial Court was affirmed. 6.1 Mr. R. Baruah, learned counsel con tends that the signature on the postal acknowledgement receipt is not that of the accused and notice was not proved to have been received by the notice, Accordingly, he submits that the condition precedent for initiation of the complaint under Section 138 of the NI Act were absent in the present case. 6.2 The petitioner also contends that mere issuance of notice is not sufficient to give rise a cause of action and only communication of the notice, would fulfill the requirement of Section 138 of the NI Act. In support of this contention the counsel relies upon the deci sion of the Supreme Court in Harman Elec tronics Private Limited Vs. National Panasonic India Private Limited reported in (2009) SCC 720. 7.1 Appearing for the complainant, Mr. J. Deka, learned counsel submits that inference under Section 27 of the General Clauses Act or Section 114 of the Evidence Act must be drawn against the petitioner since summon from the Court was served on the petitioner, at the very same address and he appeared in Court. Accordingly, Mr. Deka submits that the notice under proviso (b) of Section 138 of the NI Act was sent to the same address and the postal authorities having certified that the notice was delivered to the addressee on 7.2.2004, it would lead to a natural inference that notice was duly served on the petitioner. 7.2 The counsel relies upon the decision in Satish Jayantilal Shah Vs. Pankaj Mashruwala reported in 1996 Crl. L. J. 3099 to argue that merely because the signa ture on the acknowledgment receipt differs, it may not amount to non-service of notice since a person being conscious about the an ticipated litigation, might have ascribed a dif ferent signatures with dishonest and deliber ate intention, of defeating the provisions of the NI Act. 7.3 Another decision in Mohammed Samdani Basha Vs. Syed Issac Basha re ported in 2006 CRL L.J. 1586 is cited by the learned counsel to project that, certifica tion by the postal department is sufficient proof of service of notice to the drawer of the cheque.
7.3 Another decision in Mohammed Samdani Basha Vs. Syed Issac Basha re ported in 2006 CRL L.J. 1586 is cited by the learned counsel to project that, certifica tion by the postal department is sufficient proof of service of notice to the drawer of the cheque. 7.4 The decision of the Apex Court in V. Raja Kumari Vs. P. Subbarama Naidu re ported in AIR 2005 SC109 is relied upon by Mr. Deka to contend that when notice is dis patched by post at the correct address, no tice is deemed to be served on the notice unless he proves that it was not really served. He places reliance on this decision to also contend that the complaint cannot be dis missed at the threshold, on the ground that there was no proper service of notice and this aspect has to be decided on trial. 7.5 Finally the learned counsel for the com plainant refers to the decision in C. C. Alavi Haji Vs. Palapetty Muhammed & Anr. re ported in (2007) 6 SCC 555 to submit that the amendment to the NI Act was made with the object of promoting and inculcating faith on the efficacy of the banking system and dis suade people from dishonouring their com mitments by way of payment through cheques and to punish those unscrupulous persons. He submits that since the notice was sent by reg istered post to the correct address of the drawer of the cheque, the mandatory require ment of notice under proviso(b) to Section 138 of the NI Act is satisfied and presump tion should be drawn under Section 27 of the General Clauses Act or Secton-114 of the Evidence Act to assume that, notice was duly served on the petitioner. 8. I have considered the rival submissions and also the decisions cited at the Bar. 9. In this case when aving considered the rival submissions and also the decision cited at the bar the accused, initially appeared in the Court on 19.5.2004, he never claimed that the notice sent by the complainant was not received by him. Only on 26.7.2005 and that too after the evidence was adduced by the complainant, the petitioner contended that the signature on the acknowledgement was not his.
Only on 26.7.2005 and that too after the evidence was adduced by the complainant, the petitioner contended that the signature on the acknowledgement was not his. Accordingly, he filed the application on 8.6.2007 to argue that notice under Clause(b) of proviso to Section 138 of the NI Act was not duly served and accordingly the complaint case should be rejected. 10. But while examining the bonafide of the above stand it must be noted that in the very case relied upon by the petitioner i.e. in Harman Electronics Private Limited (supra), the Supreme Court has held that for constitu tion of an offence under Section 138, notice is deemed to have been served in certain cir cumstances. The word "communicate", ac cording to the Apex Court means inter alia, make known, inform, to convey etc. Consid ering the expression "communicate" as has been explained by the Apex Court and tak ing into account that the postal authorities have certified that the notice on the addressee was duly served and seeing that and the same was dispatched at the correct address of the peti tioner, in my view, presumption can be drawn under Section 27 of the General Clauses Act and also under Section 114 of the Evidence Act to hold that notice was duly served upon the accused petitioner. 11. The Court also must be conscious that even if the signatures .on the acknowledge ment vary, the notice was not returned unde livered. Therefore, presumption can be drawn that notice was served and the petitioner knew about the notice sent to him. The possibility of the noticee deliberately giving an incorrect signature, as is noted by the Gujarat High Court in Satish Jayantilal Shah (supra), can not also be ruled out in the facts of the present case. 12. I find that appropriate inferences were drawn by the Courts below on the basis of the circumstances in the case and taking note of the reasoning given by the learned Courts, I feel that no case is made out for accepting this second Revision Petition and accordingly the same is dismissed. However, it is made clear that observations made in this order should not influence the trial Court, while de ciding the merit of the complaint case. It is ordered accordingly. 13.
However, it is made clear that observations made in this order should not influence the trial Court, while de ciding the merit of the complaint case. It is ordered accordingly. 13. In view of the dismissal of this case, the parties are directed to appear before the trial Court on 5.9.2011. _____________