Green City vs Ravindra Jaiswal
2021 Latest Caselaw 693 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Revision No. 186 of 2016

santosh Kumar Gupta, S/o Late AS, Gupta, Rfo G-2/56, Vatike

Green City, Dimna Road, Mango, P.S. Mango (Ulidih), Jamshedpur,
District-Rast Singhbhurn, ... Petitioner

Versus

3
i

. The State of Jharkhand

. Ravindra Jaiswal, 8, 3/0 ori Jawahar Lal Jaiswal, R/o Sita Sadan,
Teacher Colony, Dirmna Road, Mango, P.S. Mango, Ulidih,
Jamshedpur, District-East Sin ghbhum ... Opposite Parties

(Through Vi }

CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR

For the Petitioner : Mr. Girish Mohan Singh, Advocate
Por the State : Mrs. Priya Shreshtha, Spl. PP

Order No. 04/ Dated: 12th February, 2021

The petitioner is the complainant. He is aggrieved of
cismissal of the complaint case bearing no. C/1 138 of 2012 which
was Aled under section 138 of Negotiable Instruments Act.
Se The appeal preferred by the complainant against the
judgment m C/1 188 of 2012 corresponding to TLR. Noe. 158 of
2U13 was dismissed vide judgment dated 14,0 1,201 8,
3, The complainant has set up a case that the accused
approached him im August, 3O11 for a fmendly loan of
Rs. 1 .40,000/- with a promise to repay the same by December,
2011, The accused issucd post-dated cheque bearing na. 401938
dated [S.12. 2011 drawn on Pumab National Bank for
88.1,40,000/- in his favour, in acknowledgment of the loan amount
received by him. The said cheque on presentation for encashment
as dishonoured with the remarks "due to insufficiency of fund". A
legal notice was sent to the accused through registered post with
acknowledgment on his residential address however inspite of
knowledge about the demand notice the accused refused to receive
the notice and the legal notice was returned with remark "not

1"

claimed", By an order dated 07.02.2012, cognizance of the offence

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urmier section 138 of Negotiable Instruments Act was taken. The

 

 
 

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substance of accusations were explained to the ac rcused and his
statement under _ SIS of Code of Criminal Procedure was
recorded on 20,08 201

4, The learned trial Judge has held that it was not proved
that the accused denberately evaded service of notice or a false
endorsement w as put on the envelop in connivance with the postal

gson. The learned trial fudge has held as under:

 
 
 
  
 
  
    
 
  

was rat beer 2 able t to prove shat t he notice was
upon the accused. | further find no such notices
Une ons to be giver to the accused in ulew of
tof 2 POs stal peor that the aecused not
bsence of proving the fact by the postal pear

ed knew about. the issuance ¢ af / notice and he
ued the service af LS y to defeat the

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&. : Opposite party no.2 was -accordin gly a acquitted.

IAS: 'disn missed Criminal Appeal

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. fe the case of Ram Prasad Sahu. Vs. Pandey Giri (2009) elR-A3 the Hon'ble Jhark cand high Court has eke th ny of the "witness efused to tak © the notice i the « eeensed him self ¢ 2 the said ta hold that the. 8 said letter hes

accused and also as because examined the pastal pean, the s tral court was upheld and the fwas dismissed

is laich down by the Hon'ble Apex Honlde dharkhand High Court i is

hat the burden to Prove that the accused has intentionally ¢ Q woitted fo claim the registered notice wrs "POR Be commamant and he cndd have discharged this anus at least by proving the endorsement the envelope

pastel RE pers ¥ th

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On in aecordarice with lea, ie, by examining the

us the author of the endorsement. There efiore, & Aes been held by the id. Trial court that in GUSENCE O} examuiation of posial peor i cannot be presumed that the notice has beer validly served upan fhe gerused."

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7, Mr. Girish Mohan Singh, the learned counsel for the petitioner would contend that the postal remark "not claimed" is sufficient ta raise @ presumption of valid service under section 2Y of

General Clauses Act, i897. The learned counsel for the petihoner x

has relied on the judgment in "A. Bhaskaran v. Sankaran Vaidhyan

oes PAO) oF ory ea Balan' (i999) PSCC SIO,

&, In "KL Shaskaran" the Hon'ble Supreme Court has observed that when a notice is returned by the sendes as

unclaimed such date would be the commencing date in reckoning the period of 15 days contemplated in clause {c}] to the proviso af section 138 of the Act. In paragraph no.Z5 of the reported pudgment the Hon'ble Supreme Court has further held as under:

a ae OF course such reckoning would be unthout prejudice fo the right of the drawer of the cheque to shou: that he had no knousedge inal the notce was brought fo fis address. in the present case the accused dulnot even attempt fo discharge the burden to rebut the aferesate presumption. °

todo,

2, In the present case the postal peon was nat examined. The complainant hes alleged that the accused had personal knowledge about the legal notice and he intentionally refused to receive the sare. fn the first place no such inference can be drawn that the ancused had personal knowledge about the legal notice. Whether the accused was present when the postal pean tried to serve the legal notice is not established because no witness has affirmed the remark made by the postal peori "not claimed", if was the postal peor who only can tender evidence which would have established the facts on the basis af which the presumption uncer section 27 of General Clauses Act can be raised. The presumption

oy i f

urider section 27 of General Clauses Act is not automatic rather hedged with conditions. An endersement of "not claimed" can amount to refusal provided there is positive evidence that the accused had refused to claim the nofice. Mere endorsemert on ths envelop which is not proved by a witness is mot sufficient,

particularly when the accused has specifically denied that an

attempt to serve legal notice was made by the postal pean,

Sm

Cr. Rev. No. 186 of 2076

10, in view of the aforesaid concurrent findings recarded by

the Courts below, | find na ground to interfere in the matter arid,

accordingly, Criminal Revision No. 186 of 2016 is dismissed. id. Let a copy of this order be transmitted to the Court concerned through FAX',

Ndi

(Shree Chandrashekhard }

RAM