Drawer did not receive notice of cheque bounce what to do

526 votes

What remark mentioned on the envelope return back to you. What is the date of issue of cheque. .

Advocate Ramniranjan Chaturvedi LawRato

620 votes

It is my best advice for your enquiry that if you have sent the notice by post or registered post on correct adress and drawer refuse to receive the notice sent by you then the according to section 27 of General Clauses Act, 1897 read section 114 of Evidence Act, 1872 and section 3 and 14 of Indian Post Office Act, 1898, -- Notice - Sent by registered post - Received back with postal endorsement `Refusal' - There is presumption of service of notice that notice has been serve and you can file complain against drawer unless you rebutted. It means When sendee/addressee denies service of registered letter then onus to produce postman is on him - In case he fails to do so, the legal presumption will go against him and will remain to be unrebutted unless there is other material to show otherwise.
According to Section 114 of the evidence Act, read with Illustration (f) thereunder, when it appears to the Court that the common course of business renders it probable that a thing would happen, the Court may draw presumption that the thing would have happened, unless there are circumstances in a particular case to show that the common course of business was not followed. Thus, Section 114 enables the Court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. Consequently, the court can presume that the common course of business has been followed in particular cases. When applied to communications sent by post, Section 114 enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. But the presumption that is raised under Section 27 of the G.C. Act is a far stronger presumption. Further, while Section 114 of Evidence Act refers to a general presumption, Section 27 refers to a specific presumption. For the sake of ready reference, Section 27 of General clause Act is extracted below:

"27. Meaning of service by post.- Where any Central Act or regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression ‘serve’ or either of the expressions ‘give’ or ‘send’ or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post”.

Dealing with the above question, Hon'ble supreme Court in case of K. Bhaskaran v. Sankaran Vaidhyan Balan considered the legal position where Hon'ble supreme Court referred to Section 27 of the General Clauses Act, 1897 (‘the GC Act’) and observed that since the NI Act does not require that notice should only be given by ‘post’ in a case where the sender has despatched the notice by post with correct address written on it, Section 27 of the GC Act could be profitably imported and in such a situation service of notice is deemed to have been effected on the sender unless he proves that it was really not served and that he was not responsible for such non-service.

Hon'ble supreme Court in the case of Vinod Shivappa ’s where the above aspects have been highlighted Hon'ble supreme Court quoted the following paragraph from Vinod Shivappa approval.
“15. We cannot also lose sight of the fact that the drawer may by dubious means manage to get an incorrect endorsement made on the envelope that the premises has been found locked or that the addressee was not available at the time when postman went for delivery of the letter. It may be that the address is correct and even the addressee is available but a wrong endorsement is manipulated by the addressee. In such a case, if the facts are proved, it may amount to refusal of the notice. If the complainant is able to prove that the drawer of the cheque knew about the notice and deliberately evaded service and got a false endorsement made only to defeat the process of law, the Court shall presume service of notice. This, however, is a matter of evidence and proof. Thus even in a case where the notice is returned with the endorsement that the premises has always been found locked or the addressee was not available at the time of postal delivery, it will be open to the complainant to prove at the trial by evidence that the endorsement is not correct and that the addressee, namely the drawer of the cheque, with knowledge of the notice had deliberately avoided to receive notice."
So according to my advise notice will presume to have been serve upon drawer and you can file complain and prove your case according the facts and circumstances of your matter.

Advocate Rohit Jagwani LawRato

550 votes

Notice is deemed to be an important aspect in matters related to NI Act.
In your case, try sending the notice by different modes i.e. normal post, speed post. reg ad. And do save all the relevant pay slips of all the modes.
If again notice returned as unserved, you may proceed further with your case. Your advocate will help you better in this scenario.

Advocate Apoorv Joshi LawRato