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2014 DIGILAW 2547 (ALL)

RAM NIWAS v. STATE OF U. P.

2014-08-21

HARSH KUMAR

body2014
Cases cited : 2010 (2) JIC 259 (All) (Para 3)-Distinguished; 1989 ARC (2) 381 (SC); AIR 1966 Cal. 615 (DB) (Para 5); 2005 Crl LJ 1518 (Para 7); AIR 2005 SC 109 (Para 8); 2006 (1) A.I.C.L.R. 533 (AP) (Para 9)-Followed. Counsel : Akhilesh Srivastava for the Petitioner; A.G.A. for the Respondents. JUDGMENT Hon’ble Harsh Kumar, J.—Heard Sri Akhilesh Srivastava, learned counsel for the petitioner and learned A.G.A. for the State. The present writ petition has been filed for issuing order or direction in the nature of certiorari quashing the order dated 9.1.2012 passed by A.C.J.M., Court No. 7, Aligarh passed in Complaint Case No. 2066 of 2010 “Lokendra Pal Singh v. Ram Niwas”, under Section 138 N.I. Act, P.S. Akrabad, District Aligarh and order dated 26.9.2013 passed by Additional Sessions Judge/Special Judge (E.C. Act), Aligarh passed in Criminal Revision No. 213 of 2013 “Ram Niwas v. Lokendra Pal Singh and another”. 2. The brief facts of the case are that the opposite party No. 2 Lokendra Pal Singh as Manager of Shanker Cold Storage filed Complaint Case No. 2066 of 2010 with the allegations that the petitioner was liable to pay a sum of Rs. 1,91,844.71/- to the complainant for which he issued a cheque in the name of Shanker Cold Storage on 7.5.2010 which was dishonoured by bank for want of sufficient funds. That after dishonour of cheque when the petitioner was contacted, he mentioned that cheque has been dishonoured due to fault of the petitioner and he may present it again to the bank which will be honoured but on the assurance of petitioner when the cheque was presented before the bank it was again dishonoured on 24.5.2010 for want of sufficient funds. That thereafter a notice was sent to petitioner on 15.6.2010 by registered post for ascertaining payment within 15 days but no reply was given so the act of petitioner amounts to an offence under Section 138 N.I. Act as well as Sections 406, 420 I.P.C. After recording statements of complainant and his witnesses under Sections 200 & 202 Cr.P.C., the magistrate vide order dated 19.1.2012 issued process against the petitioner summoning him for the offence under Section 138 N.I. Act. The petitioner filed Criminal Revision No. 213 of 2013 before the Sessions Judge, Aligarh which was dismissed vide impugned order dated 26.9.2013 and feeling aggrieved, the petitioner has filed the present writ petition for quashing the two orders mentioned above passed by A.C.J.M and Additional Sessions Judge, Aligarh. 3. Learned counsel for the petitioner raised a very short point for quashing the impugned orders in this writ petition and argued that the complainant has not mentioned anywhere in the complaint that when the notice allegedly sent by registered post on 15.6.2010 was served on the petitioner. He argued that in absence of giving date of service of notice demanding payment of cheque amount, no offence may be made out against the petitioner; that the complainant has not stated in the complaint or in his statement under Section 200 Cr.P.C. as to what is the date of service of notice demanding payment of money of dishonoured cheque and so the magistrate was wrong in issuing process because in absence of date of service of notice on accused no offence can be made out. In support of his arguments he relied on the judgment of this Court in the case of Kanhaiya Lal and another v. State of U.P. and another, 2010 (2) JIC 259 (All.). 4. Learned A.G.A. defended the orders and argued that it has been clearly mentioned in the complaint that after dishonour of cheque on 8.5.2010, the complainant contacted the petitioner and upon his assurance that cheque will be honoured, he again tendered the cheque to the banker on 24.5.2010 but the same was again dishonoured; that it shows that the petitioner had full knowledge of dishonour of cheque for want of funds; that since the notice dated 15.6.2010 was sent by registered post at correct address of the petitioner which address has not disputed and since the receipt of notice is not denied, the petitioner cannot take any benefit on this ground. 5. Upon hearing learned counsel for the parties and perusal of record, I find that it is settled principle of law as has also been laid down in several cases that if a notice is sent by registered post on correct address of the addressee, there will be presumption of its service on the addressee. 5. Upon hearing learned counsel for the parties and perusal of record, I find that it is settled principle of law as has also been laid down in several cases that if a notice is sent by registered post on correct address of the addressee, there will be presumption of its service on the addressee. In Madan and Company v. Wazir Jaivir Chand, 1989 ARC (2) 381, Hon’ble the Apex Court has held that “landlord must be held to have complied with statutory provisions by sending a notice correctly addressed to the tenant by registered post. He is not expected to do any more. The proviso (i) to Section 11(i) of Jammu Kashmir Houses and Shops Rent Control Act, 1966 in this regard is unsatisfactory and the legislature must soon set it right”. Similarly in the case of Santosh Kumar Gupta v. Smt. Chinmoyee Sen, AIR 1966 (Calcutta) 615, the Division Bench of High Court held that “notice under Section 106 Transfer of Property Act not necessarily be posted by registered post. The notice sent by U.P.C. and correctly addressed must be presumed to have been properly served”. It has been held several times in cases of termination of tenancy that if a notice for demand of arrears of rent and ejectment from the property is sent by the landlord to the tenant under Section 106 of Transfer of Property Act, by registered post there will be presumption of its service on the tenant. 6. Though the above case laws were laid down in matters between landlord and tenant but the position may not be considered to be different in cases under Section 138 N.I. Act. Undisputedly that the presumption of service of notice is rebuttable by the addressee, but in this case the petitioners, who were addressee of the notice has neither disputed the correctness of address mentioned in notice (rather the same address has been given in memo of revision as well as writ petition) nor has denied the service of notice and thus not tried to rebut above presumption. 7. It is pertinent to mention that the petitioner has not denied the service of statutory notice alleged to have been sent to him in the complaint. 7. It is pertinent to mention that the petitioner has not denied the service of statutory notice alleged to have been sent to him in the complaint. In M/s Yaswitha Constructions (P) Ltd. and another v. Chtta Subba Reddy and another, 2005 Crl LJ 1518, holding that in a case under Section 138 N.I. Act for dishonour of cheque, the question of valid service of statutory notice is a question of fact to be determined by adducing evidence during trial before the Court and cannot be entertained under inherent jurisdiction dismissed the petition. 8. In another case of V. Raja Kumari v. P. Subbarama Naidu and another, AIR 2005 SC 109 , Hon’ble the Apex Court has held that in a complaint case under Section 138 N.I. Act for dishonour of cheque, complaint cannot be dismissed at the threshhold on ground that there was no proper service of notice as the question has to be decided during trial. It has further been held by Apex Court that “if the notice dispatched by sender by post with correct address on it,—It can be deemed to be served on sendee unless he proves that it was not really served”. 9. In 2006 (1) A.I.C.L.R. 533, Andhra Pradesh, the High Court of Andhra Pradesh has held that “if the statutory notice under Section 138 N.I. Act informing cheque dishonour sent under certificate of posting, it is valid and Section 138 does not mandate that the notice has to be sent only by registered post”. 10. In the case law relied by the petitioner Kanhaiya Lal and another v. State of U.P. and another (supra) there was specific denial of sending as well as service of notice, unlike this case where service of notice has not been disputed by the petitioner. The above case law is not applicable to the facts of this case. 11. Apart from above legal position, it is against the common sense to ask the sender to tell about the service of notice on the addressee. It is also pertinent to mention that provisions of Section 138 N.I. Act do not require any specific averment regarding service of notice on the accused. I do not find any substance in the arguments advanced on behalf of the petitioner in this respect. It is also pertinent to mention that provisions of Section 138 N.I. Act do not require any specific averment regarding service of notice on the accused. I do not find any substance in the arguments advanced on behalf of the petitioner in this respect. In view of the discussions made above, I find that there is no illegality, irregularity or incorrectness in the impugned orders for not making averments regarding the date of service of notice or otherwise and there is no sufficient ground for quashing the impugned orders passed by magistrate and sessions judge in this writ petition. The writ petition is devoid of merit and is liable to be dismissed. The writ petition is dismissed accordingly. —————