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2005 DIGILAW 2399 (RAJ)

Fida Ali v. Basanti Lal

2005-09-08

H.R.PANWAR

body2005
JUDGMENT 1. - By the instant criminal revision petition under Section 397/401 of the Code of Criminal Procedure, 1973 (for short, "the Code"), the petitioner has challenged the Order dated 28.07.2004 passed by the Additional Chief Judicial Magistrate, Pratapgarh (for short, "the trial Court" hereinafter) in Criminal Case No. 264/1999, by which the trial Court orally read over and explained the substance of charge to the petitioner for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short, "the Act, 1881"). 2. The facts giving rise to this criminal revision petition, succinctly stated, are that on a complaint filed by complainant-respondent Basanti Lal, after holding an inquiry under Sections 200 and 202 of the Code, the trial Court, while allowing bail application, stated and explained the particulars of the charge to the petitioner under Section 138 of the Act, 1881. 3. I have heard learned counsel for the parties. Perused the order impugned and the record of the trial Court. 4. It has been contended by the learned counsel for the petitioner that the legal notice, as required under Section 138 (b) of the Act, 1881, was never served on the petitioner and in absence of mandatory requirement of service, the impugned order framing charge cannot be sustained in the eyes of law. Per contra, learned counsel for the complaint-respondent has contended that the legal notice was sent at the permanent address of the petitioner which was returned unserved with the endorsement that petitioner had gone to foreign country and his father refused to accept the notice, therefore, a presumption of "deemed service" can well be drawn. 5. I have given my thoughtful consideration to the rival submissions. The petitioner has come up with the case that as he had gone to Dubai (U.A.E.), the service of legal notice was not effected on him. Thereafter he appeared before the trial Court and moved for bail. The trial Court allowed that bail application and simultaneously orally read over and explained the substance of charge to the petitioner. 6. In Dr. Kamal Gurvani v. State of Rajasthan, 2003(1) Crl.C.C. 428 (Raj.), it has been held that in a summon case when accused appears or brought before the Court, the particulars of the offence of which he is accused shall be stated to him. 6. In Dr. Kamal Gurvani v. State of Rajasthan, 2003(1) Crl.C.C. 428 (Raj.), it has been held that in a summon case when accused appears or brought before the Court, the particulars of the offence of which he is accused shall be stated to him. As a charge is not to be framed, it is incumbent upon the Magistrate to state all the necessary ingredients of the offence in the questions put to the accused. It has further been observed by the Court that under Section 251 of the Code, when the accused appears before the magistrate, the particulars of offences for which he is accused are to be stated to him and he is asked whether he pleads guilty or has any defence to make, but it is not necessary to frame formal charge. The Court further held as under:- "Thus, it is held that in trial of summons cases, the only permissible way before the learned Magistrate is that he should read over the contents of the offence to the accused and the order of discharge cannot be passed by the Magistrate by resorting to provision of Section 251 and 255 (1) Criminal Procedure Code In summons cases, as already stated above, no question of framing of charge arises and thus question of hearing argument on charge also does not arise and simultaneously when no charge is to be framed, no question of discharge arises. Therefore, it is held that order for discharge of accused in summon cases cannot be passed by the Magistrate under Section 251 and 255 (1) Criminal Procedure Code" 7. In Dr. Yalamachili Nagaraja Road and Anr. v. Nalgonda District Co- operative Central Bank, Miryalguda Branch and ors., 2002(3) All India Cri. L.R. 580, the Andhra Pradesh High Court held that in case of registered post, presumption can be raised and any prudent man will make arrangement for receiving his mail in his absence and therefore, the proceedings cannot be quashed. The Court further held as under:- "When notice is sent by post to correct address either by registered post or otherwise, the presumption under Section 114 of the Evidence Act read with Section 27 of the General Clauses Act, would be that it is receive by the addressee. Since the said presumption is a rebuttable presumption the addressee can establish that he did not received the letter (notice) addressed to him. Since the said presumption is a rebuttable presumption the addressee can establish that he did not received the letter (notice) addressed to him. Since the complainant in C.C. No. 297 of 1999 sent the notice of dishonour and demanded under certificate of posting, even if the addressee was out of station, the presumption would be that it was served on the addressee. As stated earlier since service of registered notice is not mandatory it cannot be said that the condition precedent of service of notice of demand is not satisfied...." The Court further held as under:- "Any ordinary prudent person, who goes out of station for a considerable long time, or goes out of station frequently, would authorise somebody in his office or house to received registered or insured letter sent to him. A person going out of station for seven days without taking care to make arrangement for receiving the mail addressed to him by registered post etc., in his name, should suffer the consequences for his lapse." 8. In the instant case, the petitioner has been orally stated and explained the particulars of the charge. It is a summons case and, therefore, no question of framing of charge arises. When no charge is to be framed, no question of discharge arises. So far as non-service of legal notice contemplated under Section 138(b) of the Act, 1881, in view of the legal position culled out from the decision in Dr. Yalamachill Nagaraja Rao's case (supra), the petitioner himself was not vigilant enough in authorising any person to receive the registered notice etc. while he had allegedly gone to Dubai (U.A.E.) and secondly a presumption under Section 114 of the Evidence Act as also under Section 27 of the General Clauses Act regarding "deemed service" can well be drawn against him. Even otherwise, the petitioner can rebut the presumption by adducing evidence to the satisfaction of the Court. 9. In this view of the matter, the proceedings pending against the petitioner cannot be quashed on the ground that no cause of action accrued to the complainant-respondent to initiate the proceedings under Section 138 of the Act, 1881 due to non-receipt of legal notice of demand after dishonour of the cheque sent by the complainant-respondent.Consequently, I do not find any merit in the revision petition and it is dismissed accordingly. The stay petition also stands dismissed. The stay petition also stands dismissed. The record of the trial Court be returned immediately.. *******