D. VINOD SHIVAPPA versus NANDA BELLIAPPA

Citation: [2006] SUPP. 2 S.C.R. 1008 · Decided: 25-05-2006 · Supreme Court of India · Bench: B.P. SINGH · Disposal: Dismissed
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Judgment (excerpt)

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D. VINOD SHIVAPPA 
v. 
NANDA BELLIAPPA 
MAY 25, 2006 
[B.P. SINGH AND R.V. RA VEENDRAN, JJ.] 
Negotiable Instruments Act, J 88J-Section J 38-Dishonour of cheque--
Legal Notice by post-Refused due to non-availability of addressee--
Whether can be presumed to be service-Held: The presumption of service 
of notice in such cases depends on facts of each case-The question whether 
there was deemed service in the sense that the endorsement made on the 
envelope was manipulated or was a false endorsement, is a question of fact 
and must be considered in the light of the evidence-If in such cases it is 
understood that there has been no service, it would defeat the purpose of 
the Act. 
Code of Criminal Procedure, J973-S. 482-Jurisdiction under-
Scope of-Dishonour of cheque-Legal notice-Returned due to non-
availability of addressee-Complaint-Process issued-Application under 
Section 482-Held: The question whether service of notice has been 
E fraudulently avoided, is a question of fact to be decided on the basis of 
evidence-Jn such case High Court should not exercise its jurisdiction under 
the provision-Negotiable Instruments Act, J881-Section J 38. 
Interpretation of Statutes-Jn interpreting a statute, the Court must 
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adopt that construction, which suppresses the mischief and advances the 
remedy. 
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Principles-Rule of purposive construction or mischief rule. 
In the present cases, the legal notice was returned due to non-
availability of the addressee. On complaint, criminal case was registered 
and process was issued. Appellant's application under Section 482 
Cr.P.C. was dismissed by High Court. Hence the present appeals. 
The question for consideration in the present appeals was whether 
in a case where the postal endorsement shows that the notice could not 
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D. VINOD SHIV APPA v. NANDA BELLIAPPA 
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be served on account of the non-availability of the addressee, a cause 
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of action may still arise for prosecution of the drawer of the cheque on 
the basis of deemed service of notice under clause (c) of proviso to 
Section 138 of Negotiable Instruments Act, 1881. 
Dismissing the appeals, the Court 
HELD: 1.1. The question whether in a case of this nature, where 
the postal endorsement shows that the notice could not be served on 
account of the non-availability of the addressee, a cause of action may 
still arise for prosecution of the drawer of the cheque on the b_asis of 
deemed service of notice under clause (c) o.f proviso to Section 138 of 
Negotiable Instruments Act, 1881, has t? bt; a.~swered by reference to 
the facts of each case and no rule of.un!versal application can be laid 
down that· in all cases where notice is not served on account of non-
availability of the addressee, the court must presume service of notice. 
[1013-H, 1014-A-B) 
1.2. In each such cas.e where the notice could not be served on the 
addressee for one or the other reason, such as his non-availability at the 
time of delivery, or premises remaining locked on account of his having 
gone elsewhere etc. etc., if the law is understood to mean that there has 
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been no service of notice, it would completely defeat the very purpose 
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of the Act. It would then be very easy for an unscrupulous and dishonest 
drawer of a cheque to make himself scarce for sometime after issuing 
the cheque so that the requisite statutory notice can never be served 
upon him and consequently he can never be prosecuted. [1015-C-E) 
1.3. The question as to whether there was deemed service of notice, 
in the sense that the .endorsement made on the returned envelope was 
a manipulated and false endorsement, is essentially a question of fact, 
and that must be considered in the light of the evidence on record. It 
would be premature at the stage of issuance of process, to move the High 
Court for quashing of the proceeding under Section 482 Cr.P.C. The 
High Court was thus right in rejecting the petitions filed by ·the 
appellant under Section 482 Cr.P.C. [1020-A-B) 
K. Bhaskaran v. Sankar.an Vaidhya Balan and Anr., [1999) 7 SCC 
510; Dalmia Cement (Bharat) Ltd v. Galaxy Traders and Agencies Ltd and 
Ors., (2001) 6 SCC 463; V. Raja Kumari v. P. Subbarama Naidu and Anr., 
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SUPREME COURT REPORTS [2006) SUPP. 2 S.C.R. 
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(20041 8 SCC 874; Prem Chand Vijay Kumar v. Yashpal Singh and Anr., 
(200514SCC417 and Sadanandan Bhadran v. Madhavan Sunil Kumar, 
(1998) 6 sec 514, relied on. 
2. In interpreting a statute
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