V. RAJA KUMARI versus P. SUBHARAMA NAIDU AND ANR.

Citation: [2004] SUPP. 5 S.C.R. 882 · Decided: 02-11-2004 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Dismissed
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Judgment (excerpt)

A 
V. RAJA KUMARI 
v. 
P. SUBHARAMA NAIDU AND ANR. 
' 
NOVEMBER 2; 2004 
B 
[ARIJIT PASAYAT AND C.K. THAKKER, JJ.] 
Negotiable Instruments Act, 1881: 
C 
s.138-Notice by payee--Service of-Notice returned with endorsement 
that house of addressee was locked-Complaint dismissed for non-service of 
notice-High Court holding that effect of the endorsement would be considered 
during trial and complaint could not be dismissed at the threshold-Held, 
High Court justified in its view. 
D 
Respondent No. 1 filed a complaint against the appellant for offences 
under s.138 read with s.142 of the Negotiable Instruments Act, 1881. It was 
asserted in the complaint that the legal notice as required under s.138 sent 
to the respondent, was returned with an endorsement that the house of the 
addressee was locked. The Magistrate dismissed the complaint for non-service 
E of notice on the drawer of the cheque. The revision filed by the respondent 
was allowed by the High Court holding that the effect of non-service of the 
notice when the house of the accused was locked would be considered during 
trial, and the complaint ought not fo be dismissed at the threshold on the 
purported ground of non-service of the notice. The accused challenged the 
order of the High Court in the present appeal. 
F 
Dismissing the appeal, the Court 
HELD: 1.1. The context envisaged in Section 138 of the Negotiable 
Instruments Act, 1881 invites a liberal interpretation for the person who has 
the statutory obligation to give notice because he is presumed to be the loser 
G in the transaction and it is for his interest the very provision i.s made by the 
legislature. The words in clause (b) of the proviso to Section 138 show that 
the payee has the statutory obligation to "make ~ demand" by giving notice. 
The thrust in the clause is on the need to "make a demand". It is only the 
mode for making such demand which the legislature has prescribed. A payee 
H 
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V. RAJA KUMAR! v. P. SUBBARAMA NAIDU 
883 
can send the notice for doing his part for giving the notice. Once it is 
dispatched his part is over and the next depends on what the sendee does. 
1886-F-H; 887-A) 
Madhu v. Omega Pipes Ltd, (1994) (I) ALT (Crl.) 603 (Kerala), referred 
to. 
1.2. 1.2. Although Section 138 of the Act does not require that the notice 
should be given only by "post", yet the principle incorporated in Section 27 
of the General Clauses Act, 1897 can profitably be imported in a case where 
the sender has dispatched the notice by post with the correct address written 
on it. Then it can be deemed to have been served on the sendee unless he 
proves that it was not really served and that he was not responsible for such 
non-service. 1887-E~Fl 
K. Bhaskaran v. Sankaran Vaidhyan Ba/an and Anr., (1999) 7 SCC 510; 
State of MP. v. Hirata/ and Ors., ( 1996) 7 SCC 523; Central Bank of India· 
and Anr. v. Saxons Farms and Ors., (1999) 8 SCC 221; Harcharan Singh v. 
Shivrani (19811 2 SCC 535; Jagdish Singh v. Natthu Singh (1992) l SCC 
647; V. Satyanarayana v. A.P. Travel and Tourism Development Corporation 
Ltd, I (1997) 2 ALT (Cr.) 1 A.P. and Shakti Travel and Tour v. State of Bihar 
and Anr., 12002) 9 SCC 415, referred to. 
Black's Law Dictionary, referred to. 
1.3. In the instant case there is an assertion about incorrect endorsement 
regarding locking of the house. Burden is on the complainant to show that 
the accused has managed to get an incorrect postal endorsement made. What 
is the effect of it has to be considered during trial. The High Court was 
justified in its view which calls for no interference. (888-G-H; 889-B) 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No 887 of 
1999. 
A 
B 
c 
D 
E 
F 
From the Judgment and Order dated 12. I 1.98 of the Andhra Pradesh 
High Court in Cr!. R.C.No.1045of1997. 
G 
G. Ramakrishna Prasad, Wasay Khan and S. Udaya Kumar Sagar for the 
Appellant. 
Dr. Sunil Kumar, B. Vikas and Ms. D. Bharathi Reddy for the 
Respondents. 
H 
884 
SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R. 
A 
The Judgment of the Court was delivered by 
ARIJ IT PASAYA T, J. The appellant (hereinafter referred to as the 
'accused') calls in question legality of judgment rendered by learned Single 
Judge of the Andhra Pradesh High Court holding that the question whether 
notice as required under Section 138 of the Negotiable Instruments Act, 1881 
B (in short the 'Act') has been served has to be decided during trial and the 
complaint ought not t
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