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2002 DIGILAW 1324 (PNJ)

G. L. Aggarwal v. Navneet International

2002-11-28

KATHURIA

body2002
Judgment Kathuria, J. 1. Petitioner seeks quashing of the complaint, Annexure P-1 and the summoning order dated 25.2.2000, Annexure P-2 passed by the Judicial Magistrate, 1st Class, Rewari, whereby the petitioner-accused was directed to face trial under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as, `the Act). 2. The facts as founded in the complaint lodged by the complainant, M/s Navneet International, Chhopatwara, Rewari, through Vivek Kumar, Proprietor against M/s Aggarwal Polytex, Partapur, Industrial Area, Meerut through G.L. Aggarwal, Proprietor and G.L. Aggarwal, accused Nos. 1 and 2 respectively in the complaint have to be focused in brief. Accused No. 2 on behalf of accused No. 1 had purchased sole `Yarn from the complainant on credit to the tune of Rs. 79,701/-. In order to discharge the liability towards the said amount, a cheque bearing No. 135349 dated 18.9.1999 was issued by the petitioner-accused which was to be drawn at Corporation Bank, S.S.I., Branch 328/29, Sector 18 Noida as accused had Account No. SB-390 with the said bank. The complainant handed over the said cheque to his banker, Canara Bank, Kaisons House, Chandni Chowk, Delhi. The cheque was sent twice to the Canara Bank for encashment on the request of accused No. 1 and 2 but on both the occasions, the cheque in question was dishonoured on account of insufficiency of funds. On 26.11.1999, the complainant was informed by the Canara Bank, Delhi that cheque in question which was sent for clearance has been dishonoured on account of insufficiency of funds in the account of the petitioner-accused. Thereafter, complainant served a notice dated 8.12.1999 by registered post which was received back with the remarks of the post man that the addressee is not available despite several visits time and again (Praptkarta bar-bar jane par wa suchna dene par nahin milte hain Atha Wapis). Thereafter another notice dated 31.12.1999 was sent by the complainant to the accused by registered post which again was received by him on 8.1.2000 with the remarks, "Lene Se Inkar". As the accused had failed to make the payment within the statutory period of 15 days of demand made by the complainant, the complaint was filed. 3. in support of the allegations made in the complaint, complainant appeared as PW-1. He placed on record the memo Ex. As the accused had failed to make the payment within the statutory period of 15 days of demand made by the complainant, the complaint was filed. 3. in support of the allegations made in the complaint, complainant appeared as PW-1. He placed on record the memo Ex. PW1/A which indicates that cheque in question was dishonoured due to insufficiency of funds in the account of petitioner-accused. The legal notice dated 8.12.1999, postal receipts Ex. PW1/B and Ex. PW1/C, endorsement Ex. PW1/J to PW1/L and PW1/M to PW1/O were also proved by him. In additional, Naresh Kumar Aggarwal, Clerk, appeared as PW-2 who proved the dishonour of cheque Ex. PW/11, endorsement Ex. PW1/M and Ex. PW1/N. He also placed on record copy of the account Ex. PW2/A. Hawa Singh, PW-3 stated that the registered cover No. 9268 dated 31.12.1999 was sent through post office which was received back undelivered on 8.1.2000 vide Ex. PW1/H. He also proved other documents Ex. PW1/B to Ex. PW1/E. 4. Taking into consideration the aforesaid evidence led by the complainant, Judicial Magistrate, 1st Class, Rewari found sufficient grounds for proceeding against the petitioner-accused under Section 138 of the Act. It is thereafter the present petition has been filed. 5. I heard counsel for the petitioner and counsel representing the respondent at length. 6. The quashing of the complaint in question has been sought by the counsel for the petitioner on two counts. Firstly that the cheque bearing No. 198368 dated 30.10.1999 for Rs. 1 lac was not issued against any amount due or payable to the complainant but had been issued only as security for future liability. Subsequently thereto, the petitioner-accused made the payment of Rs. 79,701/- vide two different cheques. One cheque bearing No. 199567 dated 23.12.1999 for Rs. 40,000/- drawn at Federal Bank Ltd. was issued while the other payment of Rs. 39,701/- was made by the petitioner to the complainant vide cheque No. 199588 dated 8.12.1999. In this manner, entire amount due to the complainant had been paid by the petitioner-accused before filing of the complaint which fact has not been disclosed by the complainant. It was also stated from the side of the petitioner-accused that payment of Rs. 39,701/- was made by the petitioner to the complainant vide cheque No. 199588 dated 8.12.1999. In this manner, entire amount due to the complainant had been paid by the petitioner-accused before filing of the complaint which fact has not been disclosed by the complainant. It was also stated from the side of the petitioner-accused that payment of Rs. 10,587/- vide cheque No. 199577 dated 31.12.1999 has been made by the petitioner-accused towards the full and final payment vide letter dated 20.12.1999 which has been accepted by the complainant, and for that reason, no complaint could have been lodged against the petitioner by the complainant. Secondly that, definite case set up by the complainant in the complaint is that cheque dated 30.10.1999 was presented to the bank which was dishonoured on 26.11.1999 and demand notice was required to be given within 15 days of the dishonour as laid down in Section 138 of the Act, but it was sent on 31.12.1999 and for that reason, the complaint as such was not maintainable. 7. Opposing the submissions made, it has been stated by the counsel representing the respondent that in this case entire evidence has been led by the petitioner and the case is now posted for defence evidence which fact has been concealed by the petitioner and for that reason the petition deserves to be rejected. On merit, it was submitted that final payment to the complainant has not been made by the petitioner-accused which forced him to file the complaint. It was also submitted by him that when notice dated 8.12.1999 was not served despite efforts made by the post office as evident from the report dated 20.12.1999, another legal notice dated 31.12.1999 was served upon the petitioner which was received back undelivered on 8.1.2000 which clearly indicated that the petitioner refused to accept the service and thus, complainant was fully justified in serving the notice upon the petitioner-accused to make the payment of the amount due to the complainant within 15 days thereafter. 8. At the first instance, I would advert to the objection taken from the side of the petitioner as to the validity of the registered notice served by the complainant on 31.12.1999 which was received back by him on 8.1.2000 with the remarks of the postal authorities, "refusal to receive the notice". 8. At the first instance, I would advert to the objection taken from the side of the petitioner as to the validity of the registered notice served by the complainant on 31.12.1999 which was received back by him on 8.1.2000 with the remarks of the postal authorities, "refusal to receive the notice". It is clearly spelled out on record that complainant had sent first notice of demand on 8.12.1999 after the cheque was dishonoured through registered post but the same was received back by him on 20.12.1999 with the remarks of the postal authorities that despite efforts made in getting the notice served, the addressee was not available and for that reason, notice had been returned. It is clear from the reports of the postal authorities that service of the registered cover could not be made upon the petitioner-accused as he was not available at the address mentioned. That being so, it cannot be said that notice had been duly served upon him. It is for that reason, complainant sent another notice dated 31.12.1999 as noticed above. It is on the second occasion that when the notice when tendered to the petitioner, he refused to accept the same. It was thereafter the complaint was filed. Under the circumstances, it cannot be said that complainant had not made the demand for payment of the amount in question by giving a notice in writing within 15 days of the receipt of information from the bank regarding the return of the cheque as unpaid. 9. In case K. Bhaskaran v. Sankeran Vaidhyan Balan and another, 2000 (1) PLR 113 : 1999 ISJ (Banking) 688, the complainant has presented the cheque for Rs. 1 lac bearing the signatures of the accused to the banker of the accused on 29.1.1993 for encashment but the bank bounced the cheque due to insufficiency of funds in the account of the accused. Thereafter complainant issued notice by registered post to the accused on 2.2.1993 which was returned to the complainant 15.2.1993 with similar note of each date that addressee was absent on 3.2.1993, 4.2.1993, 5.2.1993 and 6.2.1993. In this manner, the postal articles remained unclaimed till 15.2.1993 and it was returned with endorsement, `unclaimed. Thereafter the complaint was filed. Thereafter complainant issued notice by registered post to the accused on 2.2.1993 which was returned to the complainant 15.2.1993 with similar note of each date that addressee was absent on 3.2.1993, 4.2.1993, 5.2.1993 and 6.2.1993. In this manner, the postal articles remained unclaimed till 15.2.1993 and it was returned with endorsement, `unclaimed. Thereafter the complaint was filed. Taking notice of the provisions of Section 138(1), clauses (b) and (c) of the Act, it was construed that on the part of the payee he has to make a demand by "giving a notice" in writing. If that was the only requirement to complete the offence on the failure of the drawer to pay the cheque amount within 15 days from the date of such "giving", the travails of the prosecution would have been very much lessened. But the legislature says that failure on the part of the drawer to pay the amount should be within 15 days "of the receipt" of the said notice. It is, therefore, clear that "giving notice" in the context is not same as receipt of notice, giving is a process of which receipt is the accomplishment. It is for the payee to perform the former process by sending the notice to the drawer in the correct address. It was further observed in para 19 as under : "If a strict interpretation is given that the drawer should have actually received the notice for the period of 15 days to start running no matter that the payee sent the notice in 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 Court should not adopt an interpretation which helps a dishonest evader and clips an honest payee as that would defeat the very legislative measure." 10. Taking notice of the provisions of Section 27 of the General Clauses Act, and interpretation of statutes, it was observed in paras 23 and 24 of the judgment as under : "23. No doubt Section 138 of the Act, does not require that the notice should be given only by "post". Taking notice of the provisions of Section 27 of the General Clauses Act, and interpretation of statutes, it was observed in paras 23 and 24 of the judgment as under : "23. No doubt Section 138 of the Act, does not require that the notice should be given only by "post". Nonetheless the principle incorporated in Section 27 (quoted above) 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. Any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to the strategy of subterfuge by successfully avoiding the notice. 24. Thus, when a notice is returned by the sendee as unclaimed such date would be the commencing date in reckoning the period of 15 days contemplated in Clause (d) to the proviso to Section 138 of the Act. Of course, such reckoning would be without prejudice to the right of the drawer of the cheque to show that he had no knowledge that the notice was brought to his address. In the present case the accused did not even attempt to discharge the burden to rebut the aforesaid presumption. 11. In the above mentioned case, it was also stated that it is well settled that a notice refused to be accepted by the addressee can be presumed to have been served upon him. With this observations, the view taken by the High Court holding the accused guilty of offence under Section 138 was upheld. 12. The ratio of the above mentioned case would fully apply to the facts of the present case. The complainant cannot be non-suited merely because at the first instance petitioner-accused successfully avoided the service of the registered notice to him and simply on the second occasion when notice was again sent to him, he refused to accept the same, it would tantamount to permitting him to defeat the provisions of law that cannot be the intention of the Statute as interpreted by the Apex Court in the above mentioned case. There is no merit in the stand taken from the side of the petitioner in this regard. There is no merit in the stand taken from the side of the petitioner in this regard. 13. With regard to the other aspect, the question whether full amount has been paid by the petitioner to the complainant as propounded in the petition is a question of fact which has to be decided during the trial of the case and not in the proceedings under Section 482 of the Code of Criminal Procedure. The other plea raised that the cheque was presented twice to the back (Bank) by the complainant, a definite stand has been taken by the complainant in the complaint that this was so done at the instance of the petitioner-accused, therefore, this is again a question of fact which requires evidence to be adduced by the parties and thereafter it can effectively be decided. Further, it is clear from the stand taken from the side of the respondent that parties have completed their evidence and the case is at defence stage. This circumstance alone warrants the rejection of the petition because at this stage the trial Court has to be allowed to settle the controversy raised between the parties in this case. For the aforesaid reasons, there is no merit in the petition and the same is consequently dismissed.