Negotiable instrument Act--138---Accused to be discharge
Jitendra Raval
(Querist) 15 April 2009
This query is : Resolved
The complainant had send the notice to the accused throught UPC and RPAD on 26.09.2007 and returned 'Unclaimed ' by the concerned post office on 22.10.2007. The complaint filed by the the complainant on 01.11.2007. Both UPC and RPAD not received by accused and accused is in a position to rebutt as non delivery is confirmed by the POST OFFICE authorities. The learned megistrate took the cognizance of the complaint on 02.11.2007 and issued the process to the acccused.
Under above circumstances,
1. Whether accused can approach the same court for 'Discharge' as it is the premature complaint and court has also took cognization prematurely????
2. Under which saction of CRPC accused should approach. S. 245 or 258?
3. Whether he should produce the document given by Post office related to non receipt of notice in the same hearing?
4. Kindly convey citation if you have.
My email id is jhraval@hotmail.com
Thanks
Manish Raghav
(Expert) 13 June 2009
Hi,
As far as the service part is concerned the service is presumed to be complete if the notice is sent on the last known address of the accused and it hardly matters whether it is received or not. but this presumption is rebuttable. for this you can see Harman Electronics (P) Ltd. Vs. National Panasonic India Ltd. decided by Supreme court.
