S. K. Trading and Co. v. Beerbal Dass Jindal — 1994 DIGILAW 723 (ALL)

O. P. JAM, J. ( 1 ) THE above six cases are being disposed of by a common judgment because the facts and law applicable to them are almost identical. ( 2 ) SIX cases were instituted by opposite party Beerbal Dass Jindal against applicant No. 2 Rejendra Prasad Malviya, Proprietor of S. K. Trading Company under Sections 138 and 142 of the Negotiable Instruments Act and Section 409 IPC for the purposes of mentioning the facts of the case, the complaint filed by Beerbal Dass Jindal, in Criminal Misc. Case No. 896 of 1992 is treated as the leading case. According to the Annexure to the affidavit filed in support of the application under Section 482 Cr. P. C. (hereinafter called as the petitiont), Beerbal Dass is the Managing Director of Nath Roller Flour Mills, Muzaffarnagar. The said Mill used to supply Maida, Sooji and flour etc. to the accused S. K. Trading Company and Rajendra Prasad Malviya is the selling agent of the Mill. After sale of the goods the accused used to make payment by draft and cheques etc. from time to time. On the 15th March, 1991 accused Rajendra Prasad Malviya issued a cheques for fifty thousand rupees drawn on Punjab National Bank, Khari Baoli, Delhi to the office of the Mill. The cheque bears the signatures of the accused Rajendra Prasad Malviya and the rubber stamp of S. K. Trading Company. The Mill gave the cheque to its banker, Union Bank of India, Muzaffarnagar for collection but it was dishonoured because there was no sufficient balance in the account of the accused. This information was communicated to the Mill by its banker on 2nd October, 1991. On the 6th of October, 1991 the Mill served a notice on the accused through its Advocate Sri Ramesh Chandra. The notice sent by registered A. D. as well as by I. P. C. at the office as well as the residential address of accused Rajendra Prasad Malviya was served on him but he did not make payments even, after a lapse of fifteen days from the date of receipts of notice Therefore, the complaint under Sections 138/142 and 400 I. P. C. was filed by the Mill through its Managing Director, Beerbal Dass on 8. 9. 91. ( 3 ) AFTER recording the statement of Beerbal Dass under Section 200 Cr. 9. 91. ( 3 ) AFTER recording the statement of Beerbal Dass under Section 200 Cr. P. C. summoning order was passed by the CJ. M. Muzaffarnagar on 31. 10. 1991 An application was filed by the complainant that the accused may evade the service of summons and may abscond and therefore, the learned C. J. M. issued non-bail able warrant against the accused. ( 4 ) THE present applications under Section 482 Cr. P. C. have been filed for quashing the above six complaints. Learned Counsel for the applicant and the learned Counsel for non-applicant No. 1 as also the learned A. G. A. have been heard. That only contention that has been advanced on behalf of applicant in each case is that the complaint filed by the Mill does not disclose the date on which the notice is said to have been served on the accused and, therefore, complaint is not maintainable. This argument has been advanced particularly in Criminal Misc. Case No. 6111 of 1992. So far as the remaining three Applications Nos. 6109 and 6110 and 6112 of 1992 are concerned, the contention is slightly different and it will be mentioned at a later stage. In order to appreciate the contention raised on behalf of the applicant provisions of Sections 138 to 142 of Negotiable Instruments Act should be summarised. Section 138 of the Act lays down that where any cheque is drawn by a person for discharge of any debt or other liability and the cheque is returned by the Bank due to insufficiency of fund in the account of the drawer of the cheque, such person shall be deemed to have committed an offence under Section 138 of the Act. Section 138 has three provisions which lays down that this section shall apply only where a cheque has been presented to the bank within a period of six months, and where the, cheque is dishonoured a notice is issued to the drawer of the cheque within fifteen days of the receipt of information of dishonour and drawer failed to make payment within fifteen days of the receipt of the notice. The contention of the learned Counsel for the applicant is that since only the date of issue of notice is mentioned in the complaint, no offence can be said to be made out because there is no starting point from which the period of 15 days -prescribed under Clause Tct should be counted. It is argued that an offence is made out only when drawer fails to make payment within 15 days of the receipt of notice issued under Clause 1 (cc ). Since the date of service of notice under Clause (c) is not mentioned in the complaint it cannot be said that the drawer of the cheque failed to make payment within 15 days of the receipt of notice. ( 5 ) I have given my careful consideration to this argument but I find myself unable to accept this as correct. In the three cases mentioned above notices were issued by the complainant to the accused by registered A. D. as well as by U. P. C. and the acknowledgment receipt has been received by the sender and it bears same initial but no date is mentioned by the person receiving the notice. When no date is mentioned in the acknowledgement receipt the complainant was not expected to mention it in the complaint. It is argued by the learned Counsel for the applicant that the complainant should have made enquiries from the post office regarding the date of delivery of notice and he should have mentioned the same in the complaint. In my opinion, it is not reasonably possible for the complainant to do so because Section 142 of the Act lays down a bar of limitation for filing the complaint. The notice was sent by the complainant from Muzaffarnagar to the accused who resides at Delhi. In order to ascertain the actual date of delivery from the post office, the complainant would have to go to Delhi or to send letter to the concerned post office. It would have been very difficult for the complainant to obtain this information within month. In a big city like Delhi, the complainant would have to make inquiry about the delivery zone and the post office of the area where the accused resides. Then the complainant will be required to file some application and the post office may take its own time to supply this information to the complainant. In a big city like Delhi, the complainant would have to make inquiry about the delivery zone and the post office of the area where the accused resides. Then the complainant will be required to file some application and the post office may take its own time to supply this information to the complainant. Therefore, in my opinion the mere fact that the date of delivery of notice under Clause (c) of the proviso is not mentioned in the complaint, does not affect the maintainability of the complaint. ( 6 ) IT has already been mentioned above that the complainant sent the notice not only by registered post but also by U. P. C. In the case of notice sent by U. P. C. there is a presumption that unless it is returned to the sender it has reached the addressee within a reasonable time. In the Commentary on the Law of Negotiable Instruments Act by Dr. P. W. Rege, this question has been considered at page 2010 and on the basis of some decided cases the learned author has come to the conclusion that the principles of constructive service of notice can be applied to such cases, as held in 1992 Criminal Law Journal 507. Where the notice is sent by certificate of posting the period of 15 days should start from the date on which the notice is reasonably expected to reach the accused. The law does not require that the notice, should actually be served on the accused. Mere sending of notice at the correct address and if the accused refused to accept the notice or omits to mention the date of receipt, the complainant cannot be held responsible for such action or omission on the part of the accused. The contention that the offence is not committed till the notice under Clause (c) of the proviso is served andtheclrqwer fails to make payment Within lsdays of the said service is not correct. Section 138 of the Act clearly says that as soon as the cheque is returned by the Bank unpaid due to insufficiency of funds such persons shall be deemed to have committed offence and be punished with imprisonment for a term Therefore the commission of the offence is complete as soon as the cheque is dishonoured. Section 138 of the Act clearly says that as soon as the cheque is returned by the Bank unpaid due to insufficiency of funds such persons shall be deemed to have committed offence and be punished with imprisonment for a term Therefore the commission of the offence is complete as soon as the cheque is dishonoured. The period of 15 days given in Clause (c) of the proviso is just to give one more opportunity to the drawer of cheque to escaped punishment provided by Section 138 of the Act. Therefore, in my opinion, the mere omission of the date of service of notice under Clause (c) of the proviso does not make the complaint not maintainable. The service of not tee and the date thereof is a question of fact which can be determined by producing the postal record and other evidence. So far as the remaining three cases i. e. Case Nos. 6109, 6110 and 6112 of 1992 are concerned notices have been served on the accused on 11. 11. 1991 when accused Rajendra Prasad Malviya was in jail and he was released from jail on, 13. 11. 1991. In view of the personal service on the accused, learned counsel for the applicant has not pressed these applicant and his arguments were confined to the remaining three applications given above. ( 7 ) A perusal of the applications shows that some allegations were leveled against the C. J. M. but the learned counsel for the applicant has not referred to any such allegation during the arguments and has presumably given up the same. It, however, appears from the complaint, Annexure 1 that in para 2, the allegation of the accused being the selling agent of the complainant has been made as an afterthought. Similarly in para 5 of the complaint, some allegation has been introduced at the last moment to make out a case under Section 409 I. P. C. The whole complaint is a typed document and in the heading Section 409 I. P. C. has been added in manuscript. Similarly in paragraphs 2 and 6 of the complaint some allegations have been added so that Section 409 IPC may become applicable. It was perhaps for this reason that nonbailable warrant was issued on the application of the complainant that the accused is likely to abscond. Similarly in paragraphs 2 and 6 of the complaint some allegations have been added so that Section 409 IPC may become applicable. It was perhaps for this reason that nonbailable warrant was issued on the application of the complainant that the accused is likely to abscond. Taking into consideration all these facts I am of the opinion that no case under Section 409 IPC is made out against the accused applicant and the issue of non-bailable warrant was totally unjustified. ( 8 ) IN the result, all the six applications are, partly allowed and while setting aside the summoning order dated 31st October, 1991 SQ. far as it relates to Section 409 J. P. G. sum-moning of the accused under Section 138/142 of the Negotiable Instruments Act is upheld. It is directed that the non-bailable warrant issued against the accused will be withdrawn and he may be summoned by a bailable warrant. Applications partly allowed: . .