Holding

A complaint under Section 138 is maintainable only if the statutory notice is properly served as required by the proviso, and filing before the 15‑day period after such service renders the complaint premature and invalid.

Summary

The respondent filed a complaint under Section 138 of the Negotiable Instruments Act alleging that nine cheques issued by the appellants had bounced. The respondent claimed to have served statutory notice to the appellants on May 7, 2000, but the notice was not sent by registered post and the affidavits of the process servers did not disclose when or how the notice was actually delivered. The complaint was filed on May 9, 2000, i.e., before the 15‑day period required after service of notice. The trial magistrate took cognizance, the Sessions Court allowed the appellants’ revision, the High Court reversed, and the Supreme Court examined whether the statutory notice requirements under the proviso to Section 138 were complied with. The Court held that the notice must be dispatched in a manner prescribed by law and its contents must be communicated; hand‑delivery without proof of receipt does not satisfy the requirement, making the complaint premature and untenable. Consequently, the appeal was allowed and the High Court judgment set aside.

Issues considered

Whether the service of notice under the proviso to Section 138 of the Negotiable Instruments Act was effected in compliance with the statutory requirements.
Whether a complaint under Section 138 can be filed before the expiry of the 15‑day period after service of notice.
Whether hand delivery of the notice, without proof of actual receipt, satisfies the statutory notice requirement.
Whether the conduct of the appellant or presumption of evasion of service is relevant to the validity of the notice.

Legislation cited

Negotiable Instruments Act, 1881s. 138, s. 141

Subjects

Negotiable Instruments ActSection 138Cheque bounceService of noticeCriminal procedureStatutory constructionPresumption of serviceVicarious liability

Judgment

A MIS. SARAV INVESTMENT & FINANCIAL CONSULTANTS
PVT. LTD. AND ANR.
V.

LLYODS REGISTER OF SHIPPING INDIAN OFFICE STAFF
PROVIDENT FUND AND ANR.
B
OCTOBER 11, 2007

[S.B. SINHA AND H.S. BEDI, JJ.]

c Negotiable Instruments Act; S. I 38 and Proviso (b) and (c):
Dishonour of cheques-Complaint-Service of Notice-
Requirements of-Held: S. I 38 ofthe Act contains a penal provision-
Since the provision provides for a severe penalty, it warrants a strict
construction-Service ofnotice is a statutory requirementfor initiation
D
ofcriminal proceeding-In terms ofthe provision, a Complaint Petition A
could be filed for commission ofan offence by a drawee ofcheque only
fifteen days after the service of the notice to that effect-Complaint
ofnotice required to be communicated to the drawee of cheques-In
the instant case, employees ofadvocates ofrespondent allegedly served
E
the notice which did not disclose complete facts about the service of
notice to drawee ofCheques-Moreover, filing of complaint on May
9, 2000 after service of notice on May 7, 2000, was pre-mature-
Hence, the complaint in question not maintainable as service ofnotice
has not been effected in terms of the provision under Section I 38 of --'<
F the Act.

Respondent filed a complaint against the appellants in the Court
of Metropolitan Magistrate u/s. 138 of the Negotiable Instruments
Act alleging, inter alia, that the cheques delivered by him have
G bounced. Cheques in question were admittedly issued on 16.3.2000.
The memo in regard to non-payment of the cheques was received ,...., '

by the respondent from the bank on 16.3.2000. Legal notices were
allegedly issued by them on 30.3.2000 through their Advocate
intimating appellants about dishonour of the cheques and calling
H 1110
SARAV INVESTMENT & FINANCIAL CONSULTANTS v. 1111
LLYODSREGISTEROFSHIPPINGINDIANOFFICE
upon them to make payment of the amount of cheques. However, A
the notices were neither sent under registered cover with
acknowledgment due nor even the couriers' service was availed. The
notices were allegedly served by the employees/clerks of Advocates
for the respondents. Relying on the purported statements made in
the complaint petition as also the affidavits of the employees of B
Advocates, cognizance was taken by the Metropolitan Magistrate.
Aggrieved, the appellants filed an application for recalling of the
processes served on them on the premise that the requirements to
comply with proviso (c) appended to Section 138 of the Act having
not been complied with, issuance of summons was illegal. The c
application was rejected by the Magistrate. A Criminal Revision
Application filed thereagainst before the Sessions Court by the
appellant was allowed by the Sessions Court. A second revision was
filed by the respondent before the High Court, which was allowed
by it. Hence the present appeal. D
Appellant contended that keeping in view the provisions
contained in clauses (b) and (c) of the proviso appended to Section
138 of the Negotiable Instruments Act, the impugned judgment of
the High Court is not sustainable.
E
Respondent submitted that the very fact that the appellants
have changed their office as a result whereof service of notice could
not be effected, the Magistrate has rightly taken cognizance of the
offence; that affidavits have been affirmed by the clerks working
with the advocates of the respondents and they were competent to F
serve notices upon the appellants which sub-serve the requirements
of law; that non-availability of the appellants at their respective
addresses would give rise to a presumption that they had been
evading service of notice; and that while determining the issue this
Court should take into consideration the quantum of the amount G
· -_, payable by the appellants to the respondents as also their conduct
that they were defaulters to third parties and on that premise the
impugned judgment may not be interfered with.
Allowing the appeal, the Court
H
1112 SUPREME COURT REPORTS [2007] 10 S.C.R.

A HELD: 1.1. Section 138 of the Negotiable Instruments Act
contains a penal provision. It is a special statute. It creates a
vicarious liability. Even the burden of proof to some extent is on the
accused. Having regard to the purport of the said provision as also
in view of the fact that it provides for a severe penalty~ the provision
B warrants a strict construction. Proviso appended to Section 138
contains a non-obstante clause. It provides that nothing contained
in the main provision shall apply unless the requirements prescribed
therein are complied with. Service of notice is one of the statutory
requirements for initiation of a criminal proceeding. Such notice is
c required to be given within 30 days of the receipt of the information
by the complainant from the bank regarding the cheque as unpaid.
Clause (c) provides that the holder of the cheque must be given an
opportunity to pay the amount in question within 15 days of the
receipt of the said notice. Complaint Petition, thus, can be filed for
D commission of an offence by a drawee of a cheque only 15 days after
service of the notice. Requirements of service of a notice is no longer
res-integra. [Para 16] [1120-B-EJ
CC. Alavi Hajiv. Pa!apetty Muhammed & Anr.; JT (2007) 7 SC
498, relied on.
E
1.2. The notice was only required to be dispatched. Its contents
were required to be communicated. Communication to the appellant
about the fact of dishonouring of the cheques and calling upon him
to pay the amount within 15 days is imperative in character. It is not
F a case, where, actual communication was not necessary. Service of
notice is a part of cause of action for lodging the complaint.
[Para 18] [1120-G; 1121-A]

K. Bhaskaran v. Sankaran Vaidhyan Balan and Anr., [1999] 7
SCC 510; CC. Alavi Hajiv. Palapetty Muhammed & Anr., JT (2007)
G 7 SC 498 and Municipal Corporation ofDelhiv. Qimate Rai Gupta &
Ors., JT (2007) 9 SC 496, relied on.

1.3. Paragraph 2 of the affidavit as affirmed by one of the
employees of Law Firm does not disclose as to when he had gone to
H serve notice upon the appellant at 34, Adarsh Nagar, Worli, Mumbai.
I
f--
SARAVINVESTMENT &FINANCIALCONSULTANTSv. 1113
LLYODSREGISTEROFSHIPPINGINDIANOFFICE
It was stated that he having been told by the neighbour of the A
appellant that he had shifted to Bhatachi Chawl in Worli, went there
also. He did not disclose as to what was the new address. He did not
furthermore state when did he visit that place.
[Para 22] [1122-D, EJ
B
1.4. Affidavit of another employee of the Law Firm is almost
on the same terms. He also did not say when he had gone to serve
the notice on the company. According to him, and, as has been noticed
by the Sessions Judge himself, some affidavit was taken from him
on May 7, 2000. It was affirmed on May 8, 2000. Apart from the
fact that there exists a doubt as to whether the said affidavit was C
affirmed before the competent authority or not, it has rightly been
observed by the Sessions Judge that the same even if taken to be
correct in its entirety, it has to be informed. The notice was sought
to be served only on May 7, 2000. The complaint petition filed by
>- the respondent on 9th May, 2000 was therefore, totally pre-mature. D
[Para 23] [1122-E, F, GJ
1.5. The allegations made in the complaint petition, if did not
subserve the requirements oflaw was not maintainable and, thus,
the same could not have been entertained. Proper application of mind E
was necessary in that behalf by the Magistrate. The Magistrate
proceeded on the basis that the service of notice upon the company
at its registered office would subserve the requirements oflaw. But,
in this case, point taken by the appellant is a different one.
[Para 24] [1122-G; 1123-A] F
1.6. Conduct of the appellant, 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. [Para 25] [1123-B]
G
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1424of2007.

From the Judgment & Order dated 12.7.2006 of the High Court of
Judicature at Bombay in Criminal W.P. Nos. 1904-1908/2004.
H
--\
1114 SUPREME COURT REPORTS (2007) 10 S.C.R.

A K. Radhakrishnan, Vikrant Singh Bais, B.A. Delima and Niraj
Sharma for the Appellants.
Sunita Dutt, Gautam Bhatikar, A. Henry and Rajiv Mehta for the
Respondents.
B The Judgment of the Court was delivered by
S.B. SINHA, J. 1. Leave granted.
~
2. Respondent filed a complaint petition in the 33rd Court of Learned
Metropolitan Magistrate at Ballard Pier, Mumbai against the appellant
c 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
D 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
E 30.3.2000 by the respondent's 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;
4. Our clients presented all the aforesaid cheques for payment
F on 16th March, 2000 through their bankers, Saraswant Co-
op Bank Ltd., Worli Branch, Mumbai 400 018. All the
aforesaid cheques were dishonoured and returned to our
clients by their bankers, vide advice dated 16th March, 2000,
with the remark "Funds Insufficient", which was received by
G our clients on 16/3/2000.
'r",
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
H
f-
SARAV INVESTMENT &FINANCIAL CONSULTANTS v. 1115
LLYODSREGISTEROFSHIPPINGINDIANOFFICE[SINHA,J.]
amount of the aforesaid dishonoured cheques, together with A
interest thereon at the rate of 18% p.a. from 16th March 2000,
within fifteen days of receipt ofthis 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. B
5. The said notice was not sent under registered cover with
... acknowledgment due. Even the couriers' service was not availed.
Employees belonging to Mis. Mulla & Mulla & Craigie Blunt & Caroe,
Advocates for the respondents were asked to serve notices. Affidavit of C
service was filed on 8.5.2000. Ramchandra Damaji Khadpe, one of the
employees of the La'W)'ers Firm affirmed on affidavit in that behalf stating:-
"2. I say that I went to 34, Adarsh Nagar Worli, Mumbai, 25
being the address of and furnished by Arvind Naik the Director
of Mis Sarav Investment and Financial Consultancy Pvt. Ltd. D
However the said premises were locked. On making enquiries
with the neighbour it was found that they had shifted to Bhatachi
Chawl in Worli. I say that I also went to this address, however
even there accused. Arvind Naik was not available and after
making enquiries from the occupants I understood that E
Accused Arvind Naik had sold the premises and was no
longer available there.
4. In view of the above I say that the said notice has been duly
served upon Mr. Arvind Naik Director of Mis. Sarav F
Investments & Consultancy Pvt. Ltd. the said service upon
them has been duly completed in accordance with law.
6. Vilas Salvi, another employee of the firm, in his affidavit stated:-
"2. I say that I went to 407, Jayesh Smruti, Near Bhagshala
0
Ground, Dombivili (W), Thane being the address of the
registered office ofSarav Investment & Financial consultancy
Pvt. Ltd. as furnished by accused No. 2 However, tllere was
no office and the door was answered by a lady who was not
for with any information and also refused to accept service of H
1116 SUPREME COURT REPORTS [2007] 10 S.C.R.

A the letter.
4. In view of the above I say that the said notice has been duly
served upon Mr. Arvind Naik Accused No. 2 Director of
Mis. Sarav Investments & Consultancy Pvi. Ltd. and upon
the company Accused No. 1. The said service upon them has
B
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:-

"6. The said notice was sent to Accused Nos. 1 and 2 by Hand
c
Delivery, but to the shock of the representatives of the advocates
of the complainant who visited to the premises of the Accused to
deliver the said notice to the accused, the premises of the Accused
No. 1 were closed and the Accused No. 2 was also not available
at that address. I say the accused No. 2 has, ddiberately and
D
intentionally, shifted premises of Accused No. 1 to avoid the
service of the notice upon him and the accused No. 1 company.
The complainant relies upon the affidavit of the representative of
the Advocates of the Complainant trust who visited the premises
of the Accused No. 1 to serve the statutory notice upon the
E
accused."

8. Relying on or on the basis of the purported statements made on
the complaint petition as also the affidavits of the aforementioned two
clerks, cognizance was taken by the learned Metropolitan Magistrate, 33rd
F Court Ballard Pier, Mumbai on 24.4.2003.

9. Appellants having been summoned, filed an application for recalling
of the processes served on them inter alia on the premise that the
requirements to comply with proviso (c) appended to Section 138 of the
G Act having not been complied with, issuance of summons was illegal.

10. By an order dated 24.4.2003, the said plea was rejected by
the learned Magistrate stating:

"10. The second point raised by the accus~d is that the statutory
H notice under section 138 was not served on the accused. In this
SARAV INVESTMENT & FINANCIAL CONSULTANIS v. 1117
LLYODSREGISTEROFSHIPPINGINDIANOFFICE[SINHA,J.]
regard it is to be noted that the service was effected by hand A
delivery. It is also contended in the complaint that it was at the
hands of one Ramchandra Khadpe and one Vilas Salvi. 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 B
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 C
done by the complainant. "

11. A Criminal Revision Application was filed thereagainst before
the learned Sessions Judge, Bombay on 29.5.2003. By an Order dated
1.4.2004, the learned Sessions Judge, Greater Bombay on consideration o
of the facts and circumstances of the case, inter alia allowed the said
revision application opining:-
16. The legal position is therefore as above and what follows from
it is that the deemed service may only be considered when it is by
post and only then all the observations in the above argument can E
become relevant. The ratio of this judgment cannot be made
applicable to a case where a service is not by post. When the
service is alleged to be by hand delivery then it is a question of
fact and not a question of law. On facts the position is as mentioned
above. What is already discussed above indicates that factually, F
there is no material on record neither in the complaint nor in
whatever evidence that was produced by the complainant to satisfy
the condition of service of notice within 15 days of the receipt of
information of dishonour. 11us was not at all verified or examined
by the Ld. Magistrate. Had it been done the abovementioned G
glaring defects were there for anyone to see. Suffice is to say relying
upon abovementioned observations of the Hon'ble Supreme Court
that the service of notice within the period is a sine quo non. There
is no alternative but to say that whatever material was before the
H
1118 SUPREME COURT REPORTS [2007) 10 S.C.R.

A Ld. Magistrate it did not satisfy this condition at all. Even before
me now after considering all these aspects the only conclusion can
be that the said condition satisfied. This position as discussed
above does not depend upon any contentions raised by the
accused but they follow from the material that was produced or
B made available to the trial Court by the complainant themselves.
The question here is not of believing or disbelieving the evidence
that is produced by the complainant though one may say that the
so called evidence of attempt of service is far from being free from
doubt. But I am not passing this order on that ground. I have
c considered only the complainant before the trial court. On
examination of only that material and the complainant's case it has
to be held that since the most important aspect was not even part
of the complainant's case in the trial court as discussed above the
process could not have been issued in the first instance and at least
D after the application for recall was made it had to be recalled. In
the ;esult the revision applications must succeed. I therefore pass
the following order."
12. The High Court on the second revision filed by the respondent
E herein, however, passed the impugned order stating;
" ... To my mind, the avennents made in the complaint together with
affidavit of the advocate and the evidence and the document and
the verification etc. clearly mention that the service of the notice
was by hand delivery, would be sufficient for issuance of process
F against the respondents ... "
13. Mr. K. Radhakrishnan, learned senior counsel appearing on
behalf of the appellant, inter alia, would submit that keeping in view the
provisions contained in clauses (b) and (c) of the proviso appended to
G Section 138 of the Negotiable Instruments Act, the impugned judgment y-
of the High Court is not sustainable.
14. Ms. Sunita Dutt, learned counsel appearing on behalf of the
respondent, on the other hand, would submit that the very fact that the
H appellants have changed their office as a result whereof service of notice
SARAV INVESTMENT & FINANCIAL CONSULTANTS v. 1119
LLYODSREGISTEROF SHIPPING INDIAN OFFICE [SINHA, J.]
could not be effected, the learned Magistrate has rightly taken cognizance A
of the offence. The learned counsel would contended that affidavits have
been affmned by the clerks working with the advocates of the respondents
and they were competent to serve notices upon the appellants herein which
sub-serve the requirements of law. Non-availability of the appellants at
their respective addresses, it was urged, would give rise to a presumption B
that they had been evading service of notice. It was furthermore contended.
that while determining the issue this Court should take into consideration
the quantum of the amount payable by the appellants to the respondents
as also their conduct that they were defaulters to third parties and on that ·
premise the impugned judgment may not be interfered with. C
15. Section 138 of the Negotiable Instruments Act reads as under:-
"138. Dishonour of cheque for insufficiency, etc., of funds in the
account - Where any cheque drawn by a person on ait account
maintained by him with a banker for payment of any amount of 0
money to another person from out of that account for the discharge,
in whole or in part, of any debt or other liability, is returned by the.
bank unpaid, either because of the amount of money standing to
the credit of that account is insufficient to honour the cheque or
that it exceeds the amount arranged to be paid from that account E
by an agreement made with that bank, such person shall be deemed
to have committed an offence and shall, without prejudice to any
other provisions of this Act, be punished with imprisonment for a
term which may be extended to two years, or with fine which may
extend to twice the amount of the cheque, or with both: F

Provided that nothing contained in this section shall apply
unles~

(a) the cheque has been presented to the bank within a period of
six months from the date on which it is drawn or within the G
period of its validity, whichever is earlier.
(b) the payee or the holder in due course of the cheque, as the
case may be, makes a demand for the payment of the said
amount of money by giving a notice in writing, to the drawer H
1120 SUPREME COURT REPORTS [2007] 10 S.C.R.

A of the cheque, within thirty days of the receipt of information
by him from the bank regarding the return of the cheque as
unpaid; and
(c) the drawer of such cheque fails to make the payment of the
said an1ount of money to the payee or, as the case may be, to
B
the holder in due course of the cheque, within fifteen days of
the receipt of the said notice.
16. Section 138 of the Act contains a penal provision. It is a special
statute. It creates a vicarious liability. Even the burden of proof to some
C extent is on the accused. Having regard to the purport of the said
provision as also in view of the fact that it provides for a severe penalty,
the provision warrants a strict construction. Proviso appended to Section
138 contains a non-obstante clause. It provides that nothing contained in
the main provision shall apply unless the requirements prescribed therein
D are complied with. Service of notice is one of the statutory requirements
for initiation of a criminal proceeding. Such notice is required to be given
within 30 days of the receipt of the information by the complainant from
the bank regarding the cheque as unpaid. Clause (c) provides that the
holder of the cheque must be given an opportunity to pay the amount in
E question \vithin 15 days of the receipt of the said notice. Complaint Petition,
thus, can be filed for commission of an offence by a drawee of a cheque
only 15 days after service of the notice. What are the requirements of
service of a notice is no longer res-integra in view of the recent decision
of this Court in CC Alavi Haji v. Palapetty Muhammed & Anr., JT
F (2007) 7 SC 498.
17. Service of notice in this case was not sought to be effected under
registered cover with acknowledgment due. It was sought to be done by
the agent of the complainant itself. The agent of the complainant sought
G to serve the said notice through their own employees.
y-
18. The notice, was only required to be dispatched. Its contents were
required to be communicated. Commw1ication to the appellant about the
fact of dishonouring of the cheques and calling upon him to pay the amount
within 15 days is imperative in character. It is not a case, where, actual
H
SARAVINVESTMENT &FINANCIALCONSULTANTSv. 1121
LLYODSREGISTEROFSHIPPINGINDIANOFFICE [SINHA,J.]
communication was not necessary. Service of notice is a part of cause of A
action for lodging the complaint.
19. In K. Bhaskaran v. Sankaran Vaidhyan Balan and Anr.,
[1999] 7 sec 510, importance of service of notice has been pointed
out stating:- B
"19. In Black's Law Dictionary "giving of notice" is distinguished
from "receiving of the notice" (vide p. 621): "A person notifies or
gives notice to another by taking such steps as may be reasonably
required to inform the other in the ordinary course, whether or not
such other actually comes to know of it." A person "receives" a C
notice when it is duly delivered to him or at the place of his
business.
20. If a strict interpretation is given that the drawer should have
actually received the notice for the period of 15 days to start running D
no matter that the payee sent the notice on the correct address, a
trickster cheque drawer would get the premium to avoid receiving
the notice by different strategies and he could escape from the legal
consequences of Section 138 of the Act. It must be borne in mind
that the court should not adopt an interpretation which helps a E
dishonest evader and clips an honest payee as that would defeat
the very legislative measure.
21. In Maxwell's Interpretation of Statutes, the learned author
has emphasized that "provisions relating to giving of notice often
receive liberal interpretation" (vide p. 99 of the 12th Ed.). The F
context envisaged in Section 138 of the act invites a liberal
interpretation for the person who has the statutory obligation to
give notice because he is presumed to be the loser in the transaction
and it is for his interest the very provision is made by the legislature.
The words in clause (b) of the proviso to Section 138 of the Act G
show that the payee has the statutory obligation to "make a
demand" by giving notice. The thrust in the clause is one the need
to "make a demand". It is only the mode for making such demand
which the legislature has prescribed. A payee can send the notice
H
1122 SUPREME COURT REPORTS [2007] 10 S.C.R.

A 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."

20. See also CC Alavi Haji (supra). Reference may also be made
to Municipal Corporation of Delhi v. Qimate Rai Gupta & Ors., JT
B (2007) 9 SC 496.
21. Appellant No. 2 is a Director of Appellant No. 1 - Company.
He is merely vicariously liable for the acts of the company. He could be
prosecuted only ifthe ingredients laid down in Section 141 of the Act
are satisfied.. See K. Srikanth Singh v. Mis. North East Securities Ltd.
C & Anr., (2007) 9 SCALE 371.
22. We may consider the effect of the nature of service of notice
effected by the employees of the Law Firm. Paragraph 2 of the affidavit
affirmed by Ramchandra Damaji Khadpe does not disclose as to when
D he had gone to serve notice upon the appellant at 34, Adarsh Nagar,
Worli, Mumbai. It was stated that he having been told by the neighbour
of the appellant Arvind Naik that he had shifted to Bhatachi Chawl in
Worli, went there also. He did not disclose as to what was the new
address. He did not furthermore state when did he visit that place.
E
23. Affidavit ofShri Vilas Salvi is almost on the same terms. He also
did not say when he had gone to serve the notice on the company.
According to him, and, as has been noticed by the learned Sessions Judge
himself, some affidavit was taken from him on 7th May. It was affirmed
F on 8th May. Apart from the fact that their exists a doubt as to whether
the said affidavit was affirmed before the competent authority or not, it
has in our opinion rightly been observed by the learned Sessions Judge
that the same even if taken to be correct in its entirety, it has to be informed.
The notice was sought to be served only on 7th May, 2000. The complaint
G petition filed by the respondent on 9th May, 2000 was therefore, totally
pre-mature.
24. Submission of the learned counsel for the respondent in regard
to the conduct of the appellant is besides the point. The allegations made
in the complaint petition, if did not subserve the requirements oflaw was
H not maintainable and, thus, the same could not have been entertained.
f- -
SARAVINVESTMENT & FINANCIAL CONSULTANTS 1~ 1123
LLYODSREGISTEROFSIDPPINGINDIANOFFICE [SINHA,J.]
Proper application of mind was necessary in that behalf by the learned A
Magistrate. The learned Magistrate proceeded on the basis that the service
of notice upon the company at its registered office would subserve the
requirements oflaw. But, in this case, point taken by the appellant is a
different one.
B
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 C
be sustained which is set aside accordingly. The appeal is allowed.
S.K.S. Appeal allowed.