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2017 DIGILAW 1131 (MP)

Yadav Chandra Sharma v. Gyanendra Singh Kushwah

2017-11-06

ANAND PATHAK

body2017
ORDER 1. Present petition under Article 226 of the Constitution of India has been preferred by the petitioner against the order dated 22.9.2017 passed by First Additional Sessions Judge, District Gwalior,whereby, the order dated 16.6.2017 passed by Judicial Magistrate First Class, Gwalior in Criminal Case No. 1570/2011; whereby, application preferred by the petitioner for calling the Postman as witness in the case has been turned down, has been confirmed. 2. Precisely stated facts of the case are that respondent has filed a private complaint against the petitioner under section 138 of Negotiable Instruments Act, 1881 with the allegation that petitioner obtained Rs.3 lacs as loan from the respondent in the month of December, 2010 and for returning the same, petitioner has given him a cheque which got dishonoured as unpaid. Therefore, respondent served a legal notice upon petitioner for demand of cheque amount vide notice dated 7.2.2011 by RAD post. However, as per the respondent, the said notice returned back with the endorsement of 'refused to take notice'. The said fact according to petitioner was not correct because there appears to be some interpolation over the endorsement made over the acknowledgment card attached with the legal notice, therefore, petitioner sought summoning of Postman (Ramsingh) who made the said endorsement. Trial Court rejected the application for calling the Postman as witness and on challenge,said order has been affirmed by rivisional Court. Hence,this petition. 3. According to learned counsel for the petitioner the rebuttable presumption exists regarding service of notice and petitioner through the testimony of Postman wants to assert that he never received such notice for dishonour of the cheque. According to him, the provisions of section 27 of General Clauses Act also take into consideration the legal position that due service of notice through RAD post has a rebuttable presumption. He prayed for setting aside of the impugned orders. 4. On the other hand, learned counsel for the respondent opposed the prayer made by the petitioner and on the basis of judgment rendered by Hon'ble apex Court in the case of C.C.Alvi Haji v. Palapetty Muhammed and another [ (2007)6 SCC 555 ] and N.Parameswaran Unni v. G.Kannan and Another [(2017)5 SCC 373] prayed for dismissal of the writ petition. 5. Heard learned counsel for the parties and perused the documents brought on record. 6. 5. Heard learned counsel for the parties and perused the documents brought on record. 6. From the nature of orders under challenge in the writ petition, it appears that petition is mainly filed under Article 227 of the Constitution of India, therefore, petitioner is seeking supervisory jurisdiction. 7. From the fact situation, it is apparent that petitioner has approached this Court against the order whereby his application for calling the Postman as witness has been rejected. 8. Here in the present case, petitioner wants to show that he has never received notice sent by respondent because he has specific allegations regarding interpolation over the acknowledgment card and best evidence would be of Postman to substantiate his allegations. Once the petitioner denied the factum of receipt of notice then the onus is over the petitioner to discharge that he never received notice. 9. Hon'ble apex Court in the case of Parimal v. Veena @ Bharti [ (2011)3 SCC 545 ], while interpreting sections 101 and 103 of Indian Evidence Act,1872 and burden of proof in respect of service of registered notice has held that burden of proof rests on a party who substantially asserts a fact and not on the party which denies it. The provisions of section 103 of Indian Evidence Act, 1872 amplifies the general rule of section 101 that the burden of proof lies on the person who asserts the affirmative of the facts in issue. 10. Similarly,in the case of Basant Singh v. Roman Catholic Mission [ (2002)7 SCC 531 ], Hon'ble apex Court has held in almost similar fact situation that it was the duty of the person who asserted that notice has not been received to call the Postman and get him examined who would be material witness and whose evidence would have bearing for proper adjudication of the controversy. Therefore, considering the said legal position as well as in the interest of justice, no prejudice would be caused if Postman appears in the witness box and makes statement about the alleged service of notice. This would conclude the controversy in a logical and meaningful manner. Judgment relied upon by the counsel for the respondent are in respect of rebuttable presumption regarding service of notice. Here in the present case, if petitioner wants to discharge onus or burden of proof then he should be given an opportunity, in the interest of justice. 11. This would conclude the controversy in a logical and meaningful manner. Judgment relied upon by the counsel for the respondent are in respect of rebuttable presumption regarding service of notice. Here in the present case, if petitioner wants to discharge onus or burden of proof then he should be given an opportunity, in the interest of justice. 11. Resultantly, petition is allowed. Impugned orders dated 22.9.2017 (Annexure P-1) and 16.6.2017 (Annexure P-2) are hereby set aside and trial Court is directed to issue summons/notice for appearance to Postman as contended in the application of the petitioner for tendering his evidence. 12. Petition stands allowed and disposed of.