Karnataka High Court: No Mandate to Serve Notice under 'Certificate of Posting'

Karnataka High Court: No Mandate to Serve Notice under 'Certificate of Posting'

The Karnataka High Court (HC) in the case titled Nagappa (Appellant) v. MA Savanur (Respondent) stated that if notice is sent through registered post with the correct address written on it, service of notice can be deemed to have been affected.

The single-judge of the HC Justice Ashok G Nijagannavar set aside the acquittal order passed by the Trial Court against an accused under Section 138 of the Negotiable Instrument Act (NI Act). The HC observed that service of notice through a registered post is proper service of notice and there is no mandate to serve the notice under certificate of posting.

The HC stated while passing the judgment that "When a sender has dispatched the notice through registered post with correct address written on it, Section 27 of General Clauses Act could be profitably imported and in such a situation service of notice deemed to have been effected on the addressee unless he proves that it was not served and he was not responsible for such non-service."

The factual matrix of the case is that the appellant/ complainant gave Rs 1,50,000 as a loan to the respondent/ accused of his family necessities. The respondent failed to pay the amount within a reasonable time and he had issued three cheques.

The appellant presented the said cheques to the bank for encashment but the cheques were dishonoured and returned with an endorsement 'funds insufficient'. A legal notice was served by the appellant however the same was returned with an endorsement 'not claimed'.

The appellant then filed a private complaint under Section 200 of the Code of Criminal Procedure (CrPC) for the offence punishable under Section 138 of the NI Act before the Trial Court.

The Trial Court opined that the appellant ought to have issued a notice under the Certificate of Posting (COP) in addition to the legal notice sent through Registered Post with Acknowledgment Due (RPAD).

It held that as the appellant had not sent the legal notice to the accused under certificate of posting, there can be no presumption of proper service of notice to the accused.

An appeal was filed before the HC against the order of the Trial Court. On behalf of the appellant, it was contended that the Trial Court defaulted in its decision as the documentary evidence placed on record showed that a legal notice is sent through registered post acknowledgement due.

On behalf of the respondent, it was urged that the appellant had issued a legal notice to the wrong address with an ill-intention to file a false case against the respondent-accused.

The HC heard both the parties at length and considered Section 94 of the NI Act, Section 17 of General Clauses Act and it opined that there was no evidence to show that the complainant intentionally sent the legal notice to the wrong address.

The Court observed that "There is no rebuttal evidence to show that the complainant has deliberately and intentionally sent the legal notice to the wrong address and the accused was not working at the place and address shown in the registered envelope."

The HC observed that there was no evidence to show that the complainant intentionally sent the legal notice to the wrong address.

The HC allowed the appeal and set aside the order of the Trial Court, and convicted the respondent for the offence punishable under Section 138 of the NI Act.

The Court directed the respondent to pay Rs.1,60,000 as a fine and it further directed that Rs. 10,000 would be remitted to the State and the remaining amount must be paid to the appellant as compensation along with interest at the rate of 6 percent per annum. The Accused was directed to deposit the amount within eight weeks from the date of this order.