Presumption of service, under the statute, would arise not only when it is sent by registered post in

terms of section 27 of the General Clauses Act but such a presumption may be raised also under section
114 of the Evidence Act. Even when a notice is received back with an endorsement that the party has
refused to accept, still then a presumption can be raised as regards the valid service of notice.406 Such a
notice, as has been held by a three-Judge bench of the Supreme Court in C.C. Alavi Haji v Palapetty
Muhammed should be construed liberally, in the following words:

Section 27 of the General Clauses Act, 1897 provides where any Central Act or Regulation made after
the commencement of this Act authorises or requires any document to be served by post, whether the
expression “serve” or either of the expression “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,
preparing 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.

On the mere proof of the facts that the notice was sent in correct address, the court cannot rush to
conclude deemed service of notice.424 Where notices were received back with postal endorsement
“not available”, the court held that unless there is proof that there is service of notice or the
endorsement was managed by the accused-addressee, it cannot be said that there was valid service of
notice.425 The proceedings are liable to be quashed, if no proof is produced of service of notice on the
accused.426 In N Velayutham v Sri Ganesh Steel Syndicate, as the postal notice was returned with the
indorsement “addressee not available in station”, it was held that there was no service of the notice on
the drawer.427

In Vasudevan v Rajamal, 428 it was held that deliberate evasion of notice would amount to constructive
service of notice.429 Where a postal notice is tendered by a postal person at the address of the accused
but could not be actually served owing to his culpable default or deliberate evasion, it would constitute
“receipt” of notice. The burden of establishing the facts rests on the complainant.430 Therefore, the
burden is on the complainant to show that the accused drawer has managed to get an incorrect postal
acknowledgement.431 In Anil Raj v Integrated Finance Co Ltd, the Kerala High Court has held that if on
the scale of preponderance of probabilities and possibilities it is found that notice is not actually served
to sendee, without the fault of the sendee, the notice cannot be deemed to be served on the
accused.432

The other view taken by the courts is that where the notice is received back with the indorsements “left-
not known”,433 “left without information”,434 “addressee out of station”,435 “not found”,436 “not
found, informed”,437 “unclaimed”,438 “not met”,439 “office totally abandoned”,440 “not available in
house”,441 “house locked”,442 “shop closed”,443 “always absent in my duty”,444 “change of
residential address of the accused”,445 and “not available in the house”,446 there is deemed service of
the notice.

The courts have held that where demand notice has been sent by the complainant by registered post at
the correct address of the accused, a presumption under General Clauses Act, 1897 will arise that the
demand notice has been duly served.447 Even if the signatures on the AD card do not match that of the
accused, he is not entitled to acquittal.
In K Bhaskaran v Sankaran Vidyan Balan, 449 the Supreme Court held that the payee has to make a
demand by “giving a notice” in writing. The failure on the part of the drawer to pay should be within 15
days “of the receipt” of such notice. Thus, “giving notice” in this context is not the same as “receipt of
notice”. Giving is the process of which receipt is the accomplishment. It is for the payee to perform the
former by sending the notice to the drawer at the correct address. The thrust in cl (b) of the proviso to
section 138 of the Act is, that the payee has the statutory obligation to “make a demand” by giving
notice. It is the only mode of demand which the legislature has prescribed. A payee is only required to
send the notice for discharging his part of giving the notice. Once it is dispatched, his part is over and the
next depends on what the sendee does. The principle of section 27 of the General Clauses Act, 1897
apply to a notice sent by post with the correct address written on it and it is 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.

In Yalamachili Nagaraja Rao (Dr) v Nalgonda Distt Co-op Central Bank, 451 it was held that where the
notice was received back with the indorsement “addressee out of station”, there was a presumption
under section 114 of the Indian Evidence Act, 1872 and section 27 of the General Clauses Act, 1897 that
it was received. It is the duty of the accused to arrange to see that his mail is received at his end, if he is
out of station. His laches and negligence cannot be a ground of defence.

The entire controversy has been put to rest in CC Alavi Haji v Palapetty Mohmamed, 454 where the
judgment passed by the Supreme Court in D Vinod Shivappa v Nanda Belliappa,455 was referred to
larger bench and Supreme Court has held that: Page 43 of 123 [s 138] Dishonour of cheque for
insufficiency, etc., of funds in the account.— Section 27 (of the General Clauses Act) gives rise to a
presumption that service of notice has been effected when it is sent to the correct address by registered
post. In view of the said presumption, when stating that notice has been sent by registered post to the
address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the
notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge
of the notice. Unless and until contrary is proved by the addressee, service of notice is deemed to have
been effected at the time at which the letter would have been delivered in the ordinary course of
business.

But where the registered envelope did not mention the correct address, the presumption of section 27
of General Clauses Act, 1897 will not operate.456 The benefit of deemed service could not be extended
to a complainant who, despite being aware that the accused was not residing at the address at which he
was sending the mail and was residing at some other address, preferred not to send the notice at the
address where the accused was actually residing.

The notice is held to be duly served upon the accused where the envelope and the AD card bore the
correct address of the accused and the AD card was even signed by the accused,460 and mere denial by
the accused that the notice was not served upon him is not sufficient in these circumstances.461 Even
the presumption of service available under section 27 of the General Clauses Act, 1897 cannot be
rebutted either by way of mere suggestion or mere denial in statement under section 313 of CrPC. 462

In A.M. Perumal v Star Tours & Travels (India) Ltd, 463 there was a change in the residential address of
the accused, which was neither communicated by him to complainant nor to postal authorities. Upon a
cheque issued by the accused having been dishonoured, the Legal Notice contemplated under section
138 of the Act was sent by complainant to the accused through registered post. However, the same was
returned by the postman with endorsement – “house of addressee found locked”. The Kerala High Court
held it to be a case where constructive notice has to be deemed and the accused cannot escape the
prosecution with the plea of want to notice.

The complaint under section 138 cannot be quashed or dismissed merely because the notice is not
served on the accused or drawer, without enquiring into the circumstances leading to the non-service of
notice.465 Whether any notice was sent by the complainant and whether the accused evaded receipt
thereof being questions of fact, the complainant must be given an opportunity to prove his case at the
trial.466 Therefore, the decision about the service of notice under cl (b) of proviso to section 138 should
be taken only after the evidence is lead and not at the initial stage.46

In Jakthi Finance Ltd v K. Selvaraj, 469 the Notice on behalf of complainant was sent on a wrong address.
The postal acknowledgement card was not produced before Court. It was held that a presumption can
be raised against complainant for failing to produce the best evidence available, namely the original
register maintained by postal authorities. As such, the accused was acquitted for want of a valid legal
notice in terms of section 138 of the Act.