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2018 DIGILAW 1046 (ALL)

ANEEL SINGH v. STATE OF U. P.

2018-04-27

ABHAI KUMAR

body2018
JUDGMENT : Hon'ble Abhai Kumar, J. This petition has been preferred against the order of summoning in Case No. 2197 of 2009, under Section 138 of Negotiable Instruments Act (Hereinafter referred to as the "Act"), whereby applicant has been summoned on the ground that cheque that was received from the applicant in favour of opposite party no. 2 was dishonoured. A notice was sent to the applicant, same was refused and payment of cheque has not been made. The contention of the learned counsel is two fold. First of all it is argued by the learned counsel for the applicant that notice has never been served upon the applicant and he never refused any such notice. From the averment of complaint, it can be said that certain notice is said to have been issued but no receipt regarding the sending of notice has been annexed. Although, in the complaint it has been mentioned that notice has been refused by the applicant but in the list of evidence at Serial No. 4, reply of applicant is also being annexed. On the basis of above fact, learned counsel for the applicant argued that compliance of proviso (b) & (c) of Section 138 of the Act are not there and accordingly complaint is bad in law. The second contention of the learned counsel is regarding the compliance of Section 202 Cr.P.C. and it has been argued by learned counsel that admittedly applicant is resident of different district where complaint has been filed and trial court ought to have made an enquiry under Section 202 Cr.P.C. before passing any order. On the basis of above fact, it is argued by learned counsel that due to non-compliance of Section 202 Cr.P.C., order passed by the learned trial court is bad in law. Whereas learned counsel for the opposite party no. 2 argued that notice was sent to applicant and in case it is being proved that such notice is sent on correct address, then there will be presumption under Section 27 of the General Clauses Act as well as under Section 114 of India Evidence Act. Learned counsel also fortified its contention by placing the law propounded by Hon'ble Apex Court in the case of C.C. Alavi Haji Vs. Palapetty Muhammed and another, Appeal (crl.) 767 of 2007 decided on 18 May, 2007. Learned counsel also fortified its contention by placing the law propounded by Hon'ble Apex Court in the case of C.C. Alavi Haji Vs. Palapetty Muhammed and another, Appeal (crl.) 767 of 2007 decided on 18 May, 2007. It is further submission of the learned counsel that when in the opinion of the trial court order can be passed on the basis of evidence provided by the opposite party no. 2 under Section 200 Cr.P.C. alongwith documentary evidence, court was well within its jurisdiction to pass the summoning order without conducting the enquiry under Section 202 Cr.P.C. It is further submission of the learned counsel that in the present proceeding matter was fixed for the enquiry under Section 202 Cr.P.C. but no evidence apart from the evidence already submitted by the opposite party no. 2 is being produced and after finding sufficient prima facie evidence against the applicant, impugned order has been passed, which is perfectly as per law and as per evidence upon record. It has been asserted in the complaint that cheque given by the applicant was dishonoured and a communication from the bank is received by the opposite party no. 2 dated 28.1.2009, insufficient funds. Then registered notice was sent to opposite party no. 2, demands of payment of cheque amount within stipulated time, same is being refused. There is clearcut averment on behalf of the complainant that registered notice was sent and same has been refused, although in the list of the document that has been annexed alongwith the complaint, detail of postal receipt has not been given. In the list of document, reply of notice by applicant is also annexed supposedly sent by the applicant. In the facts as narrated above, if we put them to be tested as per law propounded in the above referred case of C.C. Alavi Haji (supra), then we find that sufficient endorsement is there in the complaint and complaint cannot be dismissed for want of sufficient endorsement regarding the service upon the applicant. Apex Court while dealing with the matter also observed that as to why Section 138 of the Act was enacted. The supreme Court observed as follows: "4. Apex Court while dealing with the matter also observed that as to why Section 138 of the Act was enacted. The supreme Court observed as follows: "4. Chapter XVII of the Act originally containing Sections 138 to 142 was inserted in the Act by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 with the object of promoting and inculcating faith in the efficacy of banking system and its operations and giving credibility to negotiable instruments in business transaction. The introduction of the said Chapter was intended to create an atmosphere of faith and reliance on banking system by discouraging people from not honouring their commitments by way of payment through cheques. Section 138 of the Act was enacted to punish those unscrupulous persons who purported to discharge their liability by issuing cheques without really intending to do so. To make the provisions contained in the said Chapter more effective, some more Sections were inserted in the Chapter and some amendments in the existing provisions were made. Though, in this reference, we are not directly concerned with these amendments but they do indicate the anxiety of the Legislature to make the provisions more result oriented. Therefore, while construing the provision, the object of the legislation has to be borne in mind." The Apex Court further observed regarding the need of Section 138 of the Act as follows: "6. As noted hereinbefore, Section 138 of the Act was enacted to punish unscrupulous drawers of cheques who, though purport to discharge their liability by issuing cheque, have no intention of really doing so. Apart from civil liability, criminal liability is sought to be imposed by the said provision on such unscrupulous drawers of cheques. However, with a view to avert unnecessary prosecution of an honest drawer of the cheque and with a view to give an opportunity to him to make amends, the prosecution under Section 138 of the Act has been made subject to certain conditions. These conditions are stipulated in the proviso to Section 138 of the Act, extracted above. Under Clause (b) of the proviso, the payee or the holder of the cheque in due course is required to give a written notice to the drawer of the cheque within a period of thirty days from the date of receipt of information from the bank regarding the return of the cheque as unpaid. Under Clause (b) of the proviso, the payee or the holder of the cheque in due course is required to give a written notice to the drawer of the cheque within a period of thirty days from the date of receipt of information from the bank regarding the return of the cheque as unpaid. Under Clause (c), the drawer is given fifteen days time from the date of receipt of the notice to make the payment and only if he fails to make the payment, a complaint may be filed against him. As noted above, the object of the proviso is to avoid unnecessary hardship to an honest drawer. Therefore, the observance of stipulations in quoted Clause (b) and its aftermath in Clause (c) being a pre-condition for invoking Section 138 of the Act, giving a notice to the drawer before filing complaint under Section 138 of the Act is a mandatory requirement." The matter before the larger bench was referred for the consideration, whether in absence of any averments in the complaint to the effect that the accused had a role to play in the matter of non-receipt of legal notice; or that the accused deliberately avoided service of notice, same could have been entertained keeping in view the decision of the Court in D. Vinod Shivappa Vs. Nanda Belliappa. The Apex Court after considering the case of Bhaskaran and D. Vinod Shivappa, concluded as follows: "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 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. 16. As noticed above, the entire purpose of requiring a notice is to give an opportunity to the drawer to pay the cheque amount within 15 days of service of notice and thereby free himself from the penal consequences of Section 138. In Vinod Shivappa (supra), this Court observed: One can also conceive of cases where a well intentioned drawer may have inadvertently missed to make necessary arrangements for reasons beyond his control, even though he genuinely intended to honour the cheque drawn by him. The law treats such lapses induced by inadvertence or negligence to be pardonable, provided the drawer after notice makes amends and pays the amount within the prescribed period. It is for this reason that Clause (c) of proviso to Section 138 provides that the section shall not apply unless the drawer of the cheque fails to make the payment within 15 days of the receipt of the said notice. To repeat, the proviso is meant to protect honest drawers whose cheques may have been dishonoured for the fault of others, or who may have genuinely wanted to fulfil their promise but on account of inadvertence or negligence failed to make necessary arrangements for the payment of the cheque. To repeat, the proviso is meant to protect honest drawers whose cheques may have been dishonoured for the fault of others, or who may have genuinely wanted to fulfil their promise but on account of inadvertence or negligence failed to make necessary arrangements for the payment of the cheque. The proviso is not meant to protect unscrupulous drawers who never intended to honour the cheques issued by them, it being a part of their modus operandi to cheat unsuspecting persons. 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 Bhaskarans 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. " By applying Section 27 of General Clauses Act as well as Section 114 of Indian Evidence Act and also taking view the law propounded by Hon'ble Apex Court, it can very well be said that requirement of Section 138(b) of the Act has been made by the opposite party no. " By applying Section 27 of General Clauses Act as well as Section 114 of Indian Evidence Act and also taking view the law propounded by Hon'ble Apex Court, it can very well be said that requirement of Section 138(b) of the Act has been made by the opposite party no. 2 and on the basis of that it cannot be said that petition is bad in law. In view of Section 139 of Act, there is presumption in favour of opposite party no. 2, who is holder of the cheque and it is admitted fact that same cheque is dishonoured due to insufficient funds. Notice has also been sent by registry and in the circumstances, a bonafide litigant is to be given protection and by implicacies and necessities of the Act, she not be put to any hardship. When a reply on behalf of opposite party no. 2 is also upon record, then it can also be inferred that content of notice has been in the knowledge of the applicant and all the facts regarding service of the notice and non-production of the receipt for sending the notice, receiving of reply are disputed question of facts and same can only be decided by the trial court concerned. If any fact is being alleged in the complaint and same is being denied by the applicant and when these are based upon facts, same are disputed question of facts and cannot be entertained in petition under Section 482 Cr.P.C. Accordingly, this Court is of the view that contention putforward by the learned counsel for the applicant, that complaint is bad in law due to non specification of service of notice upon the applicant and under proviso (b) & (c) of Section 138 of the Act is not tenable. So far as the contention of the learned counsel regarding the enquiry under Section 202 Cr.P.C. is concerned, it can be said that trial court after taking the stock of the statement of complainant upon affidavit under Section 200 Cr.P.C. as well as the documentary proof, find the prima facie case sufficient against the applicant, then it cannot be said that any illegality has been caused. Before invoking extraordinary jurisdiction of this Court under Section 482 Cr.P.C., it is to be brought before this Court by the applicant as to what prejudice is being caused by the non-compliance of any provision. Before invoking extraordinary jurisdiction of this Court under Section 482 Cr.P.C., it is to be brought before this Court by the applicant as to what prejudice is being caused by the non-compliance of any provision. Matter was fixed for enquiry under Section 202 Cr.P.C., although it has not been specifically mentioned in the order that applicant is resident of different district that is why enquiry has been made. In view of the clear assertion in the complaint that cheque was issued by the applicant and same has been dishonoured. A notice has been given in this regard. There was clear evidence before the court concerned and in the circumstances, if no further evidence under Section 202 Cr.P.C. or enquiry is taken, then it cannot be said that applicant is prejudiced by the order. The enquiry envisaged by Section 202 Cr.P.C., is a protection given to the prospective accused, for ascertaining the court as to whether there could be any false implication of the accused persons wherein court finds that enquiry is necessary before passing any order. In the present case, there was no suspicion in the mind of the court and from the facts referred in the complaint it can also be accepted, though applicant is of a different district from where complaint is filed, false implication is ruled out. Accordingly, if no prejudice has been caused to the applicant by the order impugned, then this Court will not dwelve into the dispute and will refrain from interfering. On the basis of above, this Court does not find any ground to interfere in the matter and petition is liable to be dismissed. It is, accordingly, dismissed.