Research › Search › Judgment

Allahabad High Court · body

2017 DIGILAW 748 (ALL)

Vivek Jaiswal v. State of U. P.

2017-03-09

OM PRAKASH

body2017
JUDGMENT : Om Prakash, J. 1. This application under Section 482 Cr.P.C. has been filed with a prayer to quash the proceedings of complaint case no. 1133 of 2008 (Ram Mohan Arora v. Vivek Jaiswal) under Section 138 Negotiable Instrument Act, Police Station Kotwali, District Bareilly pending in the court of Judicial Magistrate-I, Bareilly as well as the impugned order dated 14.12.2009 passed by the Magistrate concerned. Further prayer has been made to stay the proceedings of the aforesaid case. Heard Sri Satendra Kumar Sharma, learned counsel for the applicant and learned A.G.A. for the State. None was present on behalf of opposite party no.2. 2. The brief facts of the case are that the complainant-opposite party no. 2 filed a complaint before the Judicial Magistrate, Bareilly on 14.12.2005 with the allegation that opposite party no.2 was running a business of furniture sale in the name and style of Ram Steel Furniture. Having cordial relations with opposite party no.2, applicant purchased some furniture from the shop of opposite party no.2 amounting to Rs.3,37,000/- and against the said purchase, applicant had given Rs.17,000/- in cash and issued two cheques of Rs.1,60,000/- each on different dates in favour of opposite party no.2. On presentation of the said cheques before the Bank, the same were got dishonoured with the remark 'insufficient fund'. In this regard, the opposite party no.2 sent notice to the applicant, but the applicant did not pay heed. Hence, complaint was filed against the applicant. 3. It was submitted by the learned counsel for the applicant that complaint was filed before expiry of the prescribed period, thus it is premature. No cause of action has arisen in favour of opposite party no.2 to initiate proceedings under section 138 Negotiable Instrument Act against the applicant. It was further argued that nothing has been disclosed in the complaint regarding the service of legal notice upon the applicant. Until and unless notice is served upon the applicant, criminal prosecution cannot go on. At this stage, learned counsel for the applicant, referring to the grounds taken in the memo of application and in support of his contention, placed reliance on the following case laws : 1. K.S. Joseph v. Philips Carbon Black Ltd. & Anr., 2016 LawSuit (SC) 341 2. Tameeshwar Vaishnav v. Ramvishal Gupta, 2010 LawSuit (SC) 17 3. Suranti Devi v. State of U.P. & Another, 2013 (1) ACR 493 4. K.S. Joseph v. Philips Carbon Black Ltd. & Anr., 2016 LawSuit (SC) 341 2. Tameeshwar Vaishnav v. Ramvishal Gupta, 2010 LawSuit (SC) 17 3. Suranti Devi v. State of U.P. & Another, 2013 (1) ACR 493 4. Shyam Sunder v. State of Uttarakhand & Another, 2012 (1) DCR 726 4. On the other hand, learned A.G.A. for the State argued that both the cheques said to have been issued by the applicant were presented before the Bank for encashment on the same day, but the same were not encashed due to insufficiency of funds. Information in this regard was received by opposite party no.2 on 21.10.2005. Legal notice was sent on 13.11.2005. Complaint was filed on 14.12.2005. Since both the parties are the resident of neighbouring districts, complaint filed on 14.12.2005 cannot be said to be premature. It was further argued that fact regarding service of notice, which requires leading of evidence, can be proved by opposite party no.2 during trial. 5. I have considered the arguments advanced on behalf of the rival parties' counsel and have gone through the entire record carefully including the affidavits exchanged between the parties as well as the case laws relied upon by the learned counsel for the applicant. 6. In the instant matter, two cheques, bearing nos. 187752 dated 10.10.2005 and 187753 dated 18.10.2015, amounting to Rs.1,60,000/- each were said to be issued by the applicant in lieu of the cost of furniture purchased by him from the shop of opposite party no.2. Both the cheques were presented before the Bank within its validity period for encashment, but the same were not encashed owing to insufficiency of funds. Information from Bank in this regard was received by opposite party no.2 on 21.10.2005. Legal notice, as required under law, was sent on 13.11.2005 within the period prescribed under the Negotiable Instruments Act. Complaint was filed on 14.12.2005. 7. As far as filing of the complaint on 14.12.2005 is concerned, 15 days' time is provided under the Statute after the service of the legal notice to make the payment good. If the total period between the date of sending of legal notice and date of filing of complaint is calculated, it comes about 30 days. Opposite party no.2 is the resident of Bareilly district whereas the applicant, the drawer of the cheques in question, is the resident of district Pilibhit (adjoining district). If the total period between the date of sending of legal notice and date of filing of complaint is calculated, it comes about 30 days. Opposite party no.2 is the resident of Bareilly district whereas the applicant, the drawer of the cheques in question, is the resident of district Pilibhit (adjoining district). Thus, in the present matter, at this stage, by taking into consideration the total period from the date of sending of notice till filing of the complaint, it cannot be said that complaint is premature and no cause of action has arisen in favour of opposite party no.2 to file the complaint under section 138 Negotiable Instruments Act against the applicant. 8. As far as disclosure of service of notice is concerned, this fact requires leading of evidence, which can be dealt with by the trial court during trial, as has been held by the Hon'ble Supreme Court in the case of M/s. Ajeet Seeds Ltd. v. K. Gopala Krishnaiah, 2014 (12) SCC 685 . Once a registered notice is sent under Proviso (b) to Section 138 of the Act to the drawer of the cheque, presumption of due service of the notice would stand attracted both under sub-section 114 of the Evidence Act and under Section 27 of the General Clauses Act and it is not the requirement of law to state in the complaint that the notice was served on a particular date as notice is deemed to have been served with the addressee or he is deemed to have the knowledge of the notice unless and until contrary is proved at the stage of evidence. Thus the contention that the complaint must aver the actual date of service of notice, stands rejected. 9. As far as the case laws relied upon by the learned counsel for the applicant are concerned, in the case of K.S. Joesph (supra), since no order was passed by the Magistrate concerned on point of delay in filing the complaint, the summoning order/cognizance order was quashed by the Hon'ble Supreme Court. Similarly, in Tameeshwar Vaishnav (supra) case, Hon'ble Supreme Court quashed the proceedings of the complaint case on the basis that no complaint was filed after sending the first legal notice, but complaint was filed after sending the second notice. Similarly, in Tameeshwar Vaishnav (supra) case, Hon'ble Supreme Court quashed the proceedings of the complaint case on the basis that no complaint was filed after sending the first legal notice, but complaint was filed after sending the second notice. Ratio laid down in this matter was that cause of action would arise as and when the first notice is served upon the drawer. The facts of Surati Devi (supra) case are also entirely different from the facts of present matter, as in Surati Devi (supra) case, the High Court set aside the summoning order on the basis that second complaint filed by the complainant was beyond limitation period. In Shyam Sunder (supra) case, criminal proceedings were quashed on the ground that two cheques were dishonoured on different dates. Legal notices were also issued on different dates, but no order for condoning the delay occurred in filing the complaint has been passed. 10. Thus, the facts of the aforementioned cases relied upon by the learned counsel for the applicant are entirely different from the facts of present matter. Applicant does not get any help from the above-cited case laws, as in the present matter both the cheques were related to the same Bank and were dishonoured on its presentation on the same day. Information from the Bank was also received by the holder in due course of the cheques in question on the same day. 11. In view of the above discussions, I do not find any merit in the arguments advanced by the learned counsel for the applicant. 12. Application u/s 482 Cr.P.C., being devoid of merit, is liable to be dismissed and is accordingly dismissed.