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2009 DIGILAW 969 (ORI)

VUNGARALA BERAIAH NAIDU v. GAJANANDA AGRAWAL

2009-12-19

B.P.RAY

body2009
JUDGMENT : B.P. Ray, J. - The Petitioner in this criminal misc. case invoking the inherent power Under Sections 482 Code of Criminal Procedure has prayed for quashing the order dated 29.9.2003 passed by the learned J.M.F.C, Kantabanji in I CC Case No. 18 of 2003 wherein cognizance for commission of offence u/s 138 N.I. Act has been taken and process has been issued against him. 2. Brief facts of the case are as follows: On 14.3.2003, the accused Petitioner issued a cheque for Rs. 40,000/ in favour of the complainant opposite party against the goods supplied by him. The complainant presented the cheque, but the same got dishonored as the payment was stopped by the drawer and also on account of insufficient funds in the account. Later the complainant presented the cheque once again, but this time also the cheque could not be encashed as the accused issued stop payment intimation and there was no sufficient funds in the account. The complainant after receipt of the intimation from the bank on 24.7.2003 issued the notice u/s 138, N.I. Act on 29.7.2003. Despite the notice the accused did not pay the amount, accordingly the present complaint was lodged. 3. The Petitioner assails the impugned order of taking cognizance on the ground that there was no valid notice, therefore, the complaint is not maintainable. In support of this contention the Petitioner places reliance on three registered letters issued by the complainant. 4. The Petitioner is the Proprietor of M/s Kapi Poultries. The complainant issued three notices in three different addresses, namely, residential address; shop address and the factory address. So far as the letters issued in the residential address and shop address are concerned, it is submitted by the accused Petitioner that those are incorrect addresses. The notice was returned unserved, therefore, the same cannot be held to be sufficient. On verification of the postal cover it appears that the addresses given therein are no doubt in variation with that of the addresses which are claimed to be correct. The addresses furnished are to some extent in complete and therefore, the letters returned unserved. As regards the letter sent in the Factory address, it is evident from the endorsement of the postal authority that the accused was intimated on two dates i.e.4.8.2003 and 5.8.2003 about the notice. Admittedly the accused was the proprietor of M/s. Kapi Poultries. The addresses furnished are to some extent in complete and therefore, the letters returned unserved. As regards the letter sent in the Factory address, it is evident from the endorsement of the postal authority that the accused was intimated on two dates i.e.4.8.2003 and 5.8.2003 about the notice. Admittedly the accused was the proprietor of M/s. Kapi Poultries. It is also not in dispute that the letter had reached the said premises. If the postal authority has intimated about the registered letter on two occasions in the address of the factory/business premises, it cannot be said that the accused had no knowledge about the letter. But curiously enough the said letter was also returned unserved even after intimation to the addressee. The dubious conduct of the postal authority speaks volume. The addressee, who had knowledge about the letter/notice, deliberately avoided to receive the same and with the connivance of postal authority could manage to return the letter and thereby deprived the complainant of taking recourse to legal proceeding. If it is construed as non service of notice, then it would completely defeat the very purpose of the Act. It would then be very easy for an unscrupulous and dishonest drawer of a cheque to keep himself away from the legal consequence. 5. Several decisions are cited by the Petitioner in support of his contention. The decisions reported in K.R. Indira Vs. Dr. G. Adinarayana, ; Gopa Debi Ozha Vs. Sujit Paul, ; Suman Sethi Vs. Ajay K. Churiwal and Another, speak of the contents of the demand notice. It has been held that in the notice there must be specific demand regarding payment of the amount covered under the cheque, Unless the notice contains the demand of cheque amount the same would be invalid. That is not the question in the case at hand and therefore, the decisions are not applicable. In the case of Harman Electronics (P) Ltd. and Anr. v. National Panasonic India Ltd reported in AIR 2009 SCW 410 , the primary question arose regarding the territorial jurisdiction of the Court. The Hon'ble apex Court has further held that only issuance of notice would not be sufficient unless the same is communicated to the accused. There is no dispute regarding the said proposition. To constitute the offence, the notice must be served on the accused. In certain situation there would be deemed service. The Hon'ble apex Court has further held that only issuance of notice would not be sufficient unless the same is communicated to the accused. There is no dispute regarding the said proposition. To constitute the offence, the notice must be served on the accused. In certain situation there would be deemed service. In the present case the accused managed to avoid service and therefore, it can be construed as deemed service. In the decisions reported in III (2003) CCR 247, Suresh Kumar v. Sasi and : 2003 Cri. LJ. 2921 Rama Chandra Panigrahi v. Satate of Orissa and Anr. it has been held that if the notice is sent to a person in wrong address, that service of notice shall not be deemed to have been effected. When one of the letters has reached the addressee, it cannot be said that the address was wrong. There may be some deficiency, but when with that description the letter has reached the destination, it should be treated as correct address. The apex Court judgment reported in 2009 (5) Supreme 320 , Jugesh Sehgal v. Shamsher Singh Gogi held that when all the ingredients required to constitute the offence are fulfilled, the person who has drawn the cheque can be deemed to have committed the offence. One of the requisite ingredients is service of notice. It has been further held that if one of the ingredients is not satisfied continuation of further proceeding would be abuse of the process of the Court. There is no controversy over the principle laid down by the Hon'ble Court. The factual matrix of that case is not akin to the present one, therefore, the same has no application. In a decision reported in 1997 (2) Crimes 707 A. Sudershan v. Mannen (Shabir) and Anr., the Andhra Pradesh High Court has held that demand notice returned with postal endorsement not found for 7 continuous days, therefore, there was no service of notice on the drawer. This conclusion cannot be accepted in view of the decision of the Supreme Court reported in D. Vinod Shivappa Vs. Nanda Belliappa, . 6. Even if it is found that there was some irregularity in service of notice the same would not be sufficient to quash the proceeding at the threshold. This conclusion cannot be accepted in view of the decision of the Supreme Court reported in D. Vinod Shivappa Vs. Nanda Belliappa, . 6. Even if it is found that there was some irregularity in service of notice the same would not be sufficient to quash the proceeding at the threshold. Whether there was valid service or not is a question of fact which can be proved in the trial by adducing evidence on that score. The accused can prove that the address was not correct. The apex Court in the case of D. Vinod Shivappa (supra) has not appreciated quashing of the proceeding in exercise of power u/s 482 Code of Criminal Procedure when there is factual dispute and the same can be determined in the trial. The other courses are also open for the accused, who can compound the offence by paying the amount. For the reasons aforesaid, I am not inclined to interfere with the order taking cognizance and accordingly this application is dismissed. Final Result : Dismissed