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2008 DIGILAW 1408 (PNJ)

Raj Rani v. Vinder Singh

2008-08-19

AJAI LAMBA

body2008
JUDGMENT AJAI LAMBA, J 1. This petition under Section 482, Code of Criminal Procedure, seeks quashing of complaint dated 14.10.2004 (Annexure P-1) as well as summoning order dated 15.4.2005 (Annexure P-3) whereby the petitioner has been summoned to face trial for commission of an offence under Section 138 read with Section 141, Negotiable Instruments Act, 1881 (for short 'the Act'). 2. The contention of the learned counsel for the petitioner is that in the complaint (Annexure P-1) filed by the respondent, there was no specific averment that the notice under Section 138 of the Act was received on any particular date. The only averment contained therein was that the notice was served on the petitioner. 3. I have considered the contention of the learned counsel for the petitioner. 4. A perusal of the complaint (Annexure P-1) shows that it has been averred that the accused was served with the statutory legal notice. Para-6 of the complaint reads as under:- “6. That the accused was served with the statutory legal notice dated 21.9.04 which was duly sent through Regd. A.D. to the accused at his address and the accused was asked to make the payment within 15 days of the receipt of the notice either himself or through any of his authorized agent or person. But no payment was made by the accused or any of her agent.” 5. In the summoning order (Annexure P-3), on the basis of preliminary evidence, the following has been noticed:- “On receipt of the information, the complainant served legal notice dated 21.9.04 Ex.C32 asking the accused to make the payment of cheque amount, within a period of fifteen days. The complainant has also produced on record postal receipt Ex.C4. Complainant stepped into witness box as CW1 and tendered his affidavit Ex.CA in preliminary evidence and has reiterated the allegations made in the complaint, but accused has not repaid the amount of cheque within the period stipulated in the notice. The complaint has been presented on 16.10.04.” Learned counsel for the petitioner has relied on M/s. Dalmia Cement (Bharat) Ltd. v. M/s. Galaxy Traders and Agencies Ltd., 2001(1) RCR (Criminal) 466. Reliance has been placed on paras 6 and 7 of the judgment, which read as under:- “6. The complaint has been presented on 16.10.04.” Learned counsel for the petitioner has relied on M/s. Dalmia Cement (Bharat) Ltd. v. M/s. Galaxy Traders and Agencies Ltd., 2001(1) RCR (Criminal) 466. Reliance has been placed on paras 6 and 7 of the judgment, which read as under:- “6. To constitute an offence under Section 138 of the Act the complainant is obliged to prove its ingredients which include the receipt of notice by the accused under clause (b). It is to be kept in mind that it is not the 'giving' of the notice which makes the offence but it is the 'receipt' of the notice by the drawer which gives the cause of action to the complainant to file the complaint within the statutory period. This Court in K.Bhaskaran v. Sankaran Vaidhyan Balan and another, 1999(4) RCR (Crl.) 309 (SC) : 1999 (7) SCC 510 considered the difference between 'giving' of a notice and 'receipt' of the notice and held: "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 the 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 at the correct address.” In Black's Law Dictionary 'giving of notice' is distinguished from 'receiving of notice' (vide p.621): "A person notifies or gives notice to another by taking such steps as may be reasonably required to inform the other in the ordinary course, whether or not such other actually comes to know of it'. A person 'receives' a notice when it is duly delivered to him or at the place of his business. A person 'receives' a notice when it is duly delivered to him or at the place of his business. 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 on 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 the court should not adopt an interpretation which helps a dishonest evader and clips an honest payee as that would defeat the very legislative measure. In Maxwell's Interpretation of Statutes, the learned author has emphasised that 'provisions relating to giving of notice often receive liberal interpretation' (vide p. 99 of the 12th Edn.). The context envisaged in Section 138 of the Act invites a liberal interpretation for the person who has the statutory obligation to give notice because he is presumed to be the loser in the transaction and it is for his interest the very provision is made by the legislature. The words in clause (b) of the proviso to Section 138 of the Act show that the payee has the statutory obligation to 'make a demand' by giving notice. The thrust in the clause is on the need to 'make a demand'. It is only the mode for making such demand which the legislature has prescribed. A payee can send the notice for doing his part for giving the notice. Once it is despatched his part is over and the next depends on what the sendee does. It is well settled that a notice refused to be accepted by the addressee can be presumed to have been served on him (vide Harcharan Singh v. Shivrani 1981 (2) SCC 535 and Jagdish Singh v. Natthu Singh 1992 (1) SCC 647). Here the notice is returned as unclaimed and not as refused. Will there by any significant difference between the two so far as the presumption of service is concerned? In this connection a reference to Section 27 of the General Clauses Act will be useful. The section reads thus: “27. Here the notice is returned as unclaimed and not as refused. Will there by any significant difference between the two so far as the presumption of service is concerned? In this connection a reference to Section 27 of the General Clauses Act will be useful. The section reads thus: “27. Meaning of service by post-- 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, pre-paying 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. 7. Section 27 of the General Clauses Act deals with the presumption of service of a letter sent by post. The despatcher of a notice has, therefore, a right to insist upon and claim the benefit of such a presumption. But as the presumption is rebuttable one, he has two options before him. One is to concede to the stand of the sendee that as a matter of fact he did not receive the notice, and the other is to contest the sendee's stand and take the risk for proving that he in fact received the notice. It is open to the despatcher to adopt either of the options. If he opts the former, he can afford to take appropriate steps for the effective service of notice upon the addressee. Such a course appears to have been adopted by the appellant-company in this case and the complaint filed, admittedly, within limitation from the date of the notice of service conceded to have been served upon the respondents. If he opts the former, he can afford to take appropriate steps for the effective service of notice upon the addressee. Such a course appears to have been adopted by the appellant-company in this case and the complaint filed, admittedly, within limitation from the date of the notice of service conceded to have been served upon the respondents. “ The provision of Section 138(b) of the Act, in the context of the issue involved in this case, is also required to be considered, which reads as under:- “Section 138(b) of the Act : The payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;” 6. The provision clearly inheres that a demand is required to be made for the payment of the cheque amount by giving a notice in writing to the drawer of the cheque within 30 days of the receipt of information by the drawee from the Bank regarding the return of the cheque as unpaid. 7. A perusal of the facts of the present case, as noticed above, indicates that it has been specifically pleaded that the accused was served with a statutory legal notice dated 21.9.2004, which was duly sent through Registered A.D. to the accused at her address and the accused was asked to make the payment. Likewise, the order of summoning also notices that the complainant served a legal notice dated 21.9.2004, Exhibit C-3, asking the accused to make the payment of the cheque. The postal receipt has also been placed on record as Exhibit C4. 8. As per the interpretation given by the Hon'ble Supreme Court of India in the case of M/s. Dalmia Cement (Bharat) Ltd., it has been held that a payee can send the notice for doing his part of giving the notice. Once it is dispatched, his part is over and the case depends on what the sendee does. In such circumstances, as in the present case, provisions of Section 27 of the General Clauses Act, 1897, come into play. The judgment does not support the case of the petitioner. 9. Once it is dispatched, his part is over and the case depends on what the sendee does. In such circumstances, as in the present case, provisions of Section 27 of the General Clauses Act, 1897, come into play. The judgment does not support the case of the petitioner. 9. The facts of the present case clearly indicate that the legal notice was sent through Registered A.D. post, which is an accepted mode of service. Once, the notice was sent by Registered A.D. post, the service shall be deemed to be effected by properly addressing and posting by Registered post. These facts have not only been alleged but also proved in preliminary evidence. Reference may be made to Section 27 of the General Clauses Act, 1897, which has been reproduced in the judgment of the Hon'ble Supreme Court of India in the case of M/s. Dalmia Cement (Bharat) Ltd., reproduced above. 10. When the facts are read in conjunction with the provisions of Section 27 of the General Clauses Act and the judgment of the Hon'ble Supreme Court of India, referred to above, no doubt is left in my mind that the required conditions under Section 138(b) of the Act, have been complied with. It would be for the petitioner-accused to prove facts in regard to receipt of notice, to the contrary, during evidence. A mere technical issue has been raised on account of which I do not find any reason to interfere. 11. In view of the above, the petition is dismissed.