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2017 DIGILAW 444 (UTT)

SUNIL AGGARWAL v. MAHENDRA KUMAR AGGARWAL

2017-08-21

U.C.DHYANI

body2017
JUDGMENT U.C. Dhyani, J.(Oral) By means of present application under Section 482 Cr.P.C., the applicant seeks to set aside the order dated 07.09.2013, passed by Addl. Sessions Judge II, Rudrapur, Udham Singh Nagar, as also the revision preferred by the respondent against the summoning order dated 22.07.2012, passed by Judicial Magistrate, Kashipur, in criminal complaint case no. 1282 of 202, titled as Sunil Aggarwal vs Mahendra Kumar. 2. Applicant is the complainant, who filed a criminal complaint case against the accused-respondent under Section 138 of the Negotiable Instruments Act. Annexure 4 is the copy of the criminal complaint case filed by the complaint against the accused for prosecuting the accused under Section 138 of the Negotiable Instruments Act. 3. Accused was summoned to face the trial for the said offence. Aggrieved against the same, the accused preferred a criminal revision, which was allowed by the revisional court. Summoning order was set aside by the impugned order dated 07.09.2013, against which present application under Section 482 Cr.P.C. has been filed by the complainant. Learned revisional court allowed the criminal revision filed by the accused-respondent on the ground that notice was not served upon the accused-respondent. Learned revisional court relied upon the endorsement made by the post office on the notice issued to the accused, in which it was mentioned that “Factory is sealed. Drawer is not found". Learned revisional court was of the view that service of notice cannot be deemed on the accused in view of such endorsement of the post office. 4. It is the submission of learned counsel for the applicant that the cheque was presented before the bank for encashment. The same was dishonoured on the ground ‘insufficiency of funds'. The complainant-applicant was, therefore, left with no option, but to issue a statutory notice to the accused-respondent, on his correct address. Through such notice, the money was demanded within 15 days of receipt of such notice. Copy of demand notice has been brought on record. When the notice was sent to the accused-respondent, the same was returned unserved. The acknowledgement of the notice was returned with the remark that “Factory is sealed. Drawer is not found". 5. The law is settled on the point. If the notice is sent within prescribed period of time and the same is returned with such remark –“Factory is sealed. When the notice was sent to the accused-respondent, the same was returned unserved. The acknowledgement of the notice was returned with the remark that “Factory is sealed. Drawer is not found". 5. The law is settled on the point. If the notice is sent within prescribed period of time and the same is returned with such remark –“Factory is sealed. Drawer is not found", it cannot be said that the notice was defective. Said analogy may be drawn from Section 27 of the General Clauses Act, 1897 and Section 114 of the Indian Evidence Act, 1872. The same is in conformity with the procedure laid down in the Negotiable Instruments Act. 6. Applicant filed the complaint against the accused-respondent in the court of Judicial Magistrate, Kashipur, District Udham Singh Nagar. In criminal complaint case no. 1282 of 2012, the address of the respondent was mentioned. The same address was mentioned in the legal demand notice. When the accused was summoned to face the trial, the same respondent, with same address, preferred criminal revision before the revisional court, who set aside the summoning order, aggrieved against which, present application under Section 482 Cr.P.C. has been filed. 7. Hon'ble Apex Court in C.C. Alavi Haji vs Palapetty Muhammed and another, (2007) 6 SCC 555 , which covers the entire subject matter, observed as below: “7. The issue with regard to interpretation of the expression giving of notice used in Clause (b) of the proviso is no more res integra. In K. Bhaskaran Vs. Sankaran Vaidhyan Balan & Anr., (1999) 7 SCC 510 , the said expression came up for interpretation. Considering the question with particular reference to scheme of Section 138 of the Act, it was held that failure on the part of the drawer to pay the amount should be within fifteen days of the receipt of the said notice. 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 and for the drawer to comply with Clause (c) of the proviso. 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 and for the drawer to comply with Clause (c) of the proviso. Emphasizing that the provisions contained in Section 138 of the Act required to be construed liberally, it was observed thus: 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 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 Statues the learned author has emphasized that “provisions relating to giving of notice often receive liberal interpretation," (vide page 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 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 dispatched his part is over and the next depends on what the sendee does. 8. Since in Bhaskaran's case (supra), the notice issued in terms of Clause (b) had been returned unclaimed and not as refused, the Court posed the question: Will there be any significant difference between the two so far as the presumption of service is concerned? 8. Since in Bhaskaran's case (supra), the notice issued in terms of Clause (b) had been returned unclaimed and not as refused, the Court posed the question: Will there be any significant difference between the two so far as the presumption of service is concerned? It was observed that though Section 138 of the Act does not require that the notice should be given only by post, yet in a case where the sender has dispatched the notice by post with correct address written on it, the principle incorporated in Section 27 of the General Clauses Act, 1897 (for short G.C. Act) could profitably be imported in such a case. It was held that in this situation service of notice is deemed to have been effected on the sendee unless he proves that it was not really served and that he was not responsible for such non-service. 9. All these aspects have been highlighted and reiterated by this Court recently in D. Vinod Shivappa vs Nanda, (2006) 6 SCC 456 . Elaborately dealing with the situation where the notice could not be served on the addressee for one or the other reason, such as his non availability at the time of delivery, or premises remaining locked on account of his having gone elsewhere etc; it was observed that if in each such case, the law is understood to mean that there has been no service of notice, 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 make himself scarce for sometime after issuing the cheque so that the requisite statutory notice can never be served upon him and consequently he can never be prosecuted. It was further observed that once the payee of the cheque issues notice to the drawer of the cheque, the cause of action to file a complaint arises on the expiry of the period prescribed for payment by the drawer of the cheque. If he does not file a complaint within one month of the date on which the cause of action arises under Clause (c) of the proviso to Section 138 of the Act, his complaint gets barred by time. If he does not file a complaint within one month of the date on which the cause of action arises under Clause (c) of the proviso to Section 138 of the Act, his complaint gets barred by time. Thus, a person who can dodge the postman for about a month or two, or a person who can get a fake endorsement made regarding his non availability, can successfully avoid his prosecution because the payee is bound to issue notice to him within a period of 30 days from the date of receipt of information from the bank regarding the return of the cheque as unpaid. He is, therefore, bound to issue the notice, which may be returned with an endorsement that the addressee is not available on the given address. This Court held: We cannot also lose sight of the fact that the drawer may by dubious means manage to get an incorrect endorsement made on the envelope that the premises has been found locked or that the addressee was not available at the time when postman went for delivery of the letter. It may be that the address is correct and even the addressee is available but a wrong endorsement is manipulated by the addressee. In such a case, if the facts are proved, it may amount to refusal of the notice. If the complainant is able to prove that the drawer of the cheque knew about the notice and deliberately evaded service and got a false endorsement made only to defeat the process of law, the Court shall presume service of notice. This, however, is a matter of evidence and proof. Thus even in a case where the notice is returned with the endorsement that the premises has always been found locked or the addressee was not available at the time of postal delivery, it will be open to the complainant to prove at the trial by evidence that the endorsement is not correct and that the addressee, namely the drawer of the cheque, with knowledge of the notice had deliberately avoided to receive notice. Therefore, it would be pre- mature at the stage of issuance of process, to move the High Court for quashing of the proceeding under of the Code of Criminal Procedure. Therefore, it would be pre- mature at the stage of issuance of process, to move the High Court for quashing of the proceeding under of the Code of Criminal Procedure. The question as to whether the service of notice has been fraudulently refused by unscrupulous means is a question of fact to be decided on the basis of evidence. In such a case the High Court ought not to exercise its jurisdiction under Section 482 Section 482 of the Code of Criminal Procedure. 10. It is, thus, trite to say that where the payee dispatches the notice by registered post with correct address of the drawer of the cheque, the principle incorporated in Section 27 of the G.C. Act would be attracted; the requirement of Clause (b) of proviso to Section 138 of the Act stands complied with and cause of action to file a complaint arises on the expiry of the period prescribed in Clause (c) of the said proviso for payment by the drawer of the cheque. Nevertheless, it would be without prejudice to the right of the drawer to show that he had no knowledge that the notice was brought to his address. 12. Therefore, the moot question requiring consideration is in regard to the implication of Section 114 of the Indian Evidence Act, 1872 insofar as the service of notice under the said proviso is concerned. Section 114 of the Indian Evidence Act, 1872 reads as follows: “Section 114 - Court may presume existence of certain facts.- The Court may presume the existence of any fact which it thinks likely to have happened. Regard being had to the common course of natural events human conduct and public and private business, in their relation to the facts of the particular case. Illustrations The Court may presume." *** (f) That the common course of business has been followed in particular cases; 15. Insofar as the question of disclosure of necessary particulars with regard to the issue of notice in terms of proviso (b) of Section 138 of the Act, in order to enable the Court to draw presumption or inference either under Section 27 of the G.C. Act or Section 114 of the Evidence Act, is concerned, there is no material difference between the two provisions. In our opinion, therefore, when the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of Clause (b) of proviso to Section 138 of the Act stands complied with. It is needless to emphasise that the complaint must contain basic facts regarding the mode and manner of the issuance of notice to the drawer of the cheque. It is well settled that at the time of taking cognizance of the complaint under Section 138 of the Act, the Court is required to be prima facie satisfied that a case under the said Section is made out and the aforenoted mandatory statutory procedural requirements have been complied with. It is then for the drawer to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the cover was incorrect or that the letter was never tendered or that the report of the postman was incorrect. In our opinion, this interpretation of the provision would effectuate the object and purpose for which proviso to Section 138 was enacted, namely, to avoid unnecessary hardship to an honest drawer of a cheque and to provide him an opportunity to make amends. 17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran's case (supra), if the giving of notice in the context of Clause (b) of the proviso was the same as the receipt of notice a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act. 18. In the instant case, the averment made in the complaint in this regard is: Though the complainant issued lawyers notice intimating the dishonour of cheque and demanded payment on 4.8.2001, the same was returned on 10.8.2001 saying that the accused was out of station. True, there was no averment to the effect that the notice was sent at the correct address of the drawer of the cheque by registered post acknowledgement due. But the returned envelope was annexed to the complaint and it thus, formed a part of the complaint which showed that the notice was sent by registered post acknowledgement due to the correct address and was returned with an endorsement that the addressee was abroad. We are of the view that on facts in hand the requirements of Section 138 of the Act had been sufficiently complied with and the decision of the High Court does not call for interference." 8. On the basis of aforesaid discussion and law governing the field, application under Section 482 Cr.P.C. is allowed. Order dated 07.09.2013 passed by learned revisional court is set aside and the order dated 27.07.2012 passed by the trial court is hereby affirmed.