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Gauhati High Court · body

2007 DIGILAW 691 (GAU)

Fatima Begum v. Sajid Alam Chowdhury

2007-10-09

I.A.ANSARI

body2007
ORDER I.A. Ansari, J. 1. By making this application under Section 482, Cr. P.C. the petitioner, who is the accused in Complaint Case No. 45949/2006, has sought for, inter alia, setting aside the order, dated 26-5-2006, whereby the learned Judicial Magistrate 1st Class, Guwahati, Kamrup, has taken cognizance of offence under Section 138 of the Negotiable Instruments Act, 1881 (in short, the NI Act'), and directed issuance of process against the petitioner as accused. 2. I have heard Mrs. A. Sharma, learned Counsel for the accused petitioner, and Mr. K Bhattacharjee, learned Counsel for the complainant opposite party. 3. Before I turn to the sustainability of the present petition, it is pertinent to take note of the facts, which have led to the passing of the impugned order, dated 26-5-2006. 4. The opposite party herein lodged, as complainant, a complaint which gave rise to CR Case No. 45949/2006 aforementioned. The case of the complainant, in brief, is thus : The accused issued a cheque dated 17-3-2006, for a sum of Rs. 5 lakhs, drawn in favour of the complainant at the State Bank of India, Guwahati Branch, in discharge of the loan amount, which the accused had taken from the complainant. The complainant presented the cheque for payment on 2-4-2006, but the cheque was returned by the Bank, on 13-4-2006, informing the complainant to the effect, inter alia, that the cheque had been dishonoured on the ground of insufficiency of fund. The complainant served a notice through registered post on 24-4-2006, upon the accused demanding from him payment of Rs. 5 lakhs by cash or by draft within a period of 15 days from the date of service of the notice by the accused. Though the notice was so issued by registered post at the correct address of the accused, the accused failed/neglected to make payment of the said amount of Rs. 5 lakhs and has committed thereby an offence punishable under Section 138 of the NI Act. 5. Based on the complaint aforementioned and the statement of the complainant recorded under Section 200, Cr. P.C. the learned Court below passed the order, dated 26-5-2006, aforementioned, whereby it took cognizance of offence and directed issuance of process as indicated herein-above. 6. Assailing the impugned order, Ms. 5. Based on the complaint aforementioned and the statement of the complainant recorded under Section 200, Cr. P.C. the learned Court below passed the order, dated 26-5-2006, aforementioned, whereby it took cognizance of offence and directed issuance of process as indicated herein-above. 6. Assailing the impugned order, Ms. Sharma, learned Counsel for the accused petitioner, has submitted that no notice was ever received by or served upon, the accused informing her about the dishonour of the said cheque and demanding payment of the said sum of Rs. 5 lakhs. This apart, contends Ms. Sharma, there is no material on record to show that the accused petitioner had been served with notice as is statutorily required to be served, in terms of Section 138 of the NI Act, on the person, whose prosecution is sought on the ground of dishonour of cheque for insufficiency of fund. Support for the submissions, so made, is sought to be derived by Mrs. Sharma by referring the cases of SIL Import, USA v. Exim Aides Silk Exporters, Bangalore reported in 1999CriLJ2276 and Dalmia Cement (Bharat) Ltd. v. Galaxy Traders and Agencies Ltd. and Ors. reported in 2001CriLJ972 . 7. Appearing on behalf of the complainant opposite party, Mr. K. Bhattacharjee, learned Counsel, points out that in the complaint, in question, the complainant has clearly stated that a notice of demand was sent on 24-4-2006 and the same stands served on the accused. In such circumstances, according to Mr. Bhattacharjee, until the time the contrary is shown, the presumption, under the law, would be that notice stands served on the accused petitioner. It is further submitted by Mr. Bhattacharjee that even after service of summons, it was open to the accused petitioner to make payment of the amount aforementioned within a period of 15 days from the date of service of summons, but as the petitioner has made no such payment, his prosecution under Section 138 is wholly consistent with the scheme of Section 138, N. I. Act. In support of his submissions, Mr. Bhattacharjee refers to the case of C. C. Alavi Haji v. Palapetty Muhammed and Anr. reported in 2007 CriLJ 3214. 8. In support of his submissions, Mr. Bhattacharjee refers to the case of C. C. Alavi Haji v. Palapetty Muhammed and Anr. reported in 2007 CriLJ 3214. 8. While considering the present criminal petition, what needs to be pointed out, at the very out set, is that in a proceeding for quashing, the averments made in the complaint are to be assumed as admitted and, if, on the basis of such assumption, an offence is shown to have been committed, there is no impediment, on the part of a Magistrate, to take cognizance of the offence, which the complaint may disclose, provided that the Magistrate is, otherwise, competent to take cognizance of such an offence. Whether a statement or an averment made in a complaint is true or false is not a question open for determination in a quashing proceeding, for, such a disputed question of fact can be determined only during the trial. This apart, in order to get his criminal prosecution quashed, an accused cannot rely upon a document, on which his defence rests, particularly, when the document, so relied upon is not an admitted document. 9. There is no dispute before me that under the provisions of Section 138 of the NI Act, prosecution of a person, whose cheque has been dishonoured for insufficiency of fund, is not possible unless he is served with a notice informing him about the fact of dishonour of the cheque issued by him and demand for payment of the amount, for which the cheque was issued, is raised. 10. What is, however, of utmost importance to note is that the question as to whether such a notice has been received by, or served upon, the addressee is a question of fact and this fact can be determined only at the trial. Sufficient it is for a complainant if he makes adequate averments in the complaint itself that the notice of demand, as required by Section 138, stands served on the accused. Under Section 114 of the Evidence Act, a Court may presume that in the common course of natural event, the communication would have been delivered at the address of the addressee. This apart, Section 27 of the General Clauses Act, 1897, raises a presumption that such a notice stands served on the addressee. Under Section 114 of the Evidence Act, a Court may presume that in the common course of natural event, the communication would have been delivered at the address of the addressee. This apart, Section 27 of the General Clauses Act, 1897, raises a presumption that such a notice stands served on the addressee. This is, in substance, the position of law, which the decisions in the cases of SIL Import, USA (supra), Dalmia Cement (Bharat) Ltd. (supra), and C. C. Alavi Haji (supra) lay down. 11. In the present case, the clear averments made by the complainant are to the effect that a notice of demand was sent by registered post to the correct address of the accused. In the face of such a cogent averment, the Magistrate, who is in seisin of the complaint, was well within his powers to presume that the notice had been served on the accused and, then, proceed with the complaint on the basis of such presumption in accordance with law. However, when the trial commences, the complainant would have the duty to adduce evidence of either actual service of notice or he may take the risk of proving the service of notice by relying on the legal presumption. In the latter case, it would be sufficient for the complainant to adduce evidence to show that a notice was sent by registered post to the accused and that the address to which the notice was sent was the correct address. The presumption, which Section 27 raises, is, however, a rebuttable presumption and if the accused, either by entering into witness box or by any other means, denies receipt of such a notice, the presumption would stand rebutted. Such a stage would, however, come only when recording of evidence in the complaint case commences. 12. What crystallises from the above discussion is that it is sufficient for the purpose of sustaining a complaint if the averments are made, in the complaint, to the effect, inter alia, that notice, as required under Section 138, stands sent to the correct address of the accused person by registered post. 12. What crystallises from the above discussion is that it is sufficient for the purpose of sustaining a complaint if the averments are made, in the complaint, to the effect, inter alia, that notice, as required under Section 138, stands sent to the correct address of the accused person by registered post. In the present case, since the complaint, in question, clearly states that a notice, on the correct address of the accused petitioner, was sent by registered post, the learned Court below acted, within the ambits of its power, in assuming that such a notice stood served on the accused petitioner and in proceeding with the complaint on the basis of such presumption. It is not the case of the accused petitioner that the statements made in the complaint, even if assumed to be true or correct as a whole, no case for prosecution of the accused petitioner, under Section 138, NI Act, can be said to have been made out. 13. Because of what have been discussed above, this Criminal Petition fails and the same shall accordingly dismissed. 14. Before parting with this criminal petition, it is, however, made clear that it will remain open for the accused petitioner to agitate the question of service of notice, in question, during trial. This criminal petition shall stand disposed of in terms of the above observations and directions. 15. In order to ensure expeditious disposal of the complaint case aforementioned, it is hereby directed that the complainant as well as the accused petitioner shall appear in the Court of the learned Chief Judicial Magistrate, Tinsukia, on 16-10-2007, for further necessary order, which may be passed by the learned Court below.