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2018 DIGILAW 19 (RAJ)

Akash Bhatiya v. Rajeev Sharma

2018-01-02

KANWALJIT SINGH AHLUWALIA

body2018
ORDER : Mr. Kanwaljit Singh Ahluwalia, J. 1. Present appeal has been filed to assail the impugned judgment dated 11.3.2008 rendered by the Court of Additional Chief Judicial Magistrate No.2, Jaipur City, Jaipur. 2. Briefly stated, in a complaint filed, Akash Bhatia had stated that he is engaged in sale of precious and semi-precious stones and in the course of business transactions, sale of stones was made to accused-respondent Rajeev Sharma and he had issued a cheque amounting to Rs. 25,000/- and the said cheque when presented, had bounced. 3. The trial Judge acquitted the accused-respondent on the ground that the complainant has failed to prove delivery of statutory notice upon the accused-respondent. 4. Learned counsel for the complainant-appellant has raised solitary argument to contend that the trial Judge committed a grave error by not noticing the judgment rendered by the Supreme Court in C.C. Alavi Haji v. Palapetty Muhammed & Anr. [ (2007) 6 SCC 555 ]. Learned counsel has drawn attention of this court to Paras-10, 15 and 17 of the judgment rendered in the case of C.C. Alavi Haji's (supra). Paras-10, 15 and 17 of the said judgment reads as under:- "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. 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 emphasis 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 afore-noted 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 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." 5. Learned counsel for the accused-respondent has very fairly admitted that the judgment rendered by the Supreme Court in C.C. Alavi Haji's case (supra) was not considered by the trial court. 6. Consequently, the impugned judgment rendered by the trial court is set aside. The matter is remitted back to the trial court to pass a fresh judgment taking into account the judgment rendered by the Supreme Court in the case of C.C. Alavi Haji (supra). Needful shall be done by the trial court within three months from the date of receipt of certified copy of this order. 7. Both the parties, through their counsel, are directed to appear before the trial court on 22.01.2018. Records requisitioned from the trial court be also returned to the trial court forthwith. In view of above, present appeal stands disposed of.