A bench of Jusitce Patil has observed that presumption of service arises not only by positive refusal but also by passive refusal of the demand notice sent by post. The order was passed in the case titled as Nandkishor Shamkant Sonar vs Dipak Divakar Kulkarni on 18.10.2019.

Accused challenged the criminal proceeding and one of the grounds taken was that the demand notice sent by the complainant was returned to him and since this fact itself is mentioned in the complaint, there could not have been any question of taking cognizance.

High Court observed "when the notice is send by registered post and is returned with a postal endorsement 'refused' or 'not available in the house' or 'house locked' or 'shop closed' or 'addressee not in station', it has to be presumed under Section 27 of the General Clauses Act that it was a due service. It is conspicuous that it is not that the situations include only positive act of 'refusal' endorsed by the postman but even where the endorsements read that the 'house is locked' or 'not available in the house' or 'shop is closed' or 'addressee not in station' which are passive in nature give rise to the presumption under Section 27 of the General Clauses Act".

It also observed "In the matter in hand the endorsement is to the effect that on inquiry it was informed that the concerned person resides in a different town and the address is not known. Though the purport of providing for clause (C) in the Proviso to Section 138 of the Negotiable Instrument Act is to enable the drawer to rectify his mistake and make payment and thereby avoid impending prosecution, it cannot be said that the legislature intended to provide him some opportunity to avoid the prosecution by issuing the cheque and then leaving the address so that there would be no compliance regarding service of notice after the cheque was dishonored. It would be then easier for anybody to first issue a cheque in discharge of a liability and then avoid the prosecution by simply leaving the address and kill the time of thirty days so that no prosecution could thereafter be launched. It is under these peculiar facts, such an endorsement about the Petitioner having not found at the address and having started residing at a different town made by the postman is nothing but a one more contingency in the line of the above contingencies like endorsement of 'refused', 'not available in the house', 'house locked' etc. I find no discernible difference in the situation in the matter in hand and these categories of endorsements".

High Court held "The upshot of the above discussion, there was sufficient material before the Magistrate to form an opinion that there was sufficient ground to proceed against the Petitioner for an offence under Section 138 of the Negotiable Instruments Act and the learned Additional Sessions Judge has rightly upheld the orders. Such concurrent decisions are neither perverse or arbitrary so as to enable this Court to intervene by invoking writ jurisdiction".

Read the Order here: