M/S. Sarav Investment & Financial ... vs Llyods Register Of Shipping Indian ...

2. Respondent filed a complaint petition in the 33rd Court of Learned Metropolitan Magistrate at Ballard Pier, Mumbai against the appellant herein alleging, inter alia, that as nine cheques delivered by him having bounced, they have committed an offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the Act).

3. It was alleged that a notice was served asking the appellants to pay the amount in question within a period of 15 days from the date of receipt thereof.

4. Cheques were admittedly issued on 16.3.2000. The memo in regard to non-payment of the said cheques was received by the respondent on 16.3.2000. Legal notices were allegedly issued on 30.3.2000 by the respondents Advocate intimating the appellants as regards the dishonour of the said cheques and calling upon them to make payment of the amount of cheque, stating;

5. Under these circumstances, we hereby give you notice under section 138 of the Negotiable Instruments Act, 1881, as amended to date to make payment of the said sum of Rs. 5,31,47,792/- payable by you to our clients being the aggregate amount of the aforesaid dishonoured cheques, together with interest thereon at the rate of 18% p.a. from 16th March 2000, within fifteen days of receipt of this notice by you, failing which our clients shall be constrained to initiate criminal proceedings against you under section 138 of the Negotiable Instruments Act, 1881 at your entire risk as to costs and consequences.

5. The said notice was not sent under registered cover with acknowledgment due. Even the couriers service was not availed. Employees belonging to M/s. Mulla & Mulla & Craigie Blunt & Caroe, Advocates for the respondents were asked to serve notices. Affidavit of service was filed on 8.5.2000. Ramchandra Damaji Khadpe, one of the employees of the Lawyers Firm affirmed on affidavit in that behalf stating:-

4. In view of the above I say that the said notice has been duly served upon Mr. Arvind Naik Director of M/s. Sarav Investments & Consultancy Pvt. Ltd. the said service upon them has been duly completed in accordance with law.

7. The complaint petition was filed on 9.4.2000. In regard to the alleged service of notice, it was stated:-

Affidavit of those two process servers were filed along with the complainant and statement on oath of Vilas Salvi and Khadpe was recorded in the respective cases. Thereafter on satisfaction the process was issued upon relying the fact that on the given address of the accused no. 1 in Dombivali the notices were tendered and a lady who opened the door of that tenement did not accept the notice and closed the door. This much statement made by them was sufficient to show prima facie attempt for service of the statutory notice was done by the complainant.

25. Conduct of the appellant, in our opinion, is not material for determining the issue. Even no presumption can be raised in regard to the service of notice as the same has not been effected in terms of the statute.

26. We, therefore, are of the opinion that impugned judgment cannot be sustained which is set aside accordingly. The appeal is allowed.