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2020 DIGILAW 1329 (ALL)

Rajanikant Mani Tripathi v. State of U. P.

2020-11-17

RAM KRISHNA GAUTAM

body2020
JUDGMENT : RAM KRISHNA GAUTAM, J. 1. This criminal revision under Section 397/401 of Cr.P.C. has been filed by Rajanikant Mani Tripathi, against State of U.P. and Another, against judgment and order dated 7.2.2020, passed by Prescribed Authority/Additional Court (Negotiable Instrument Act), Gorakhpur, whereby Criminal Case No. 473 of 2018, under Section 138 of N.I. Act, P.S. Kotwali, District Gorakhpur, was dismissed, with this contention that learned trial Judge failed to appreciate facts placed on record. Order dated 7.2.2020 was against the provision of N.I. Act. A notice to opposite party No. 2 was sent on 18.12.2017 and as per provision of Section 27 of General Clauses Act, presumption of its service, in case of its non return back to sender, is to be drawn after thirty days and after thirty days, it may be presumed that notice has been served upon the addressee and if within fifteen days of same, amount is not paid, then cause of action arises. Applicant-revisionist has sent notice of dishonour of cheque to opposite party No. 2, drawer of cheque on 18.12.2017, it was a registered notice which had yet not been received back and presumption of service may be taken by the Court on 17.1.2018 i.e. after thirty days. This complaint for offence punishable under Section 138 of N.I. Act was filed before Court on 15.2.2018, which is within thirty days form the date of arising of cause of action on 17.1.2018. But the Court failed to consider above provision of General Clauses Act and thereby rejected complaint on the ground of delayed filing. It was an order apparently erroneous on the face of it. Hence, this revision with prayer for setting aside impugned judgment and order dated 7.2.2020 of trial Court of Additional Court No. 1 (Negotiable Instrument Act) Gorakhpur, in Complaint Case No. 473 of 2018, under Section 138 of N.I. Act, Rajanikant Mani Tripathi vs. Kiran Yadav and remit the matter to Court below for further hearing in the case. 2. Hence, this revision with prayer for setting aside impugned judgment and order dated 7.2.2020 of trial Court of Additional Court No. 1 (Negotiable Instrument Act) Gorakhpur, in Complaint Case No. 473 of 2018, under Section 138 of N.I. Act, Rajanikant Mani Tripathi vs. Kiran Yadav and remit the matter to Court below for further hearing in the case. 2. Learned counsel for the revisionist argued that as per Section 138 of N.I. Act - Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless: (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. 3. (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. 3. Hon'ble Apex Court in Kaushalya Devi Massand vs. Roopkishore Khore, AIR 2011 SC 2566 , has observed that the gravity of a complaint under the Negotiable Instruments Act cannot be equated with an offence under the provisions of the Indian Penal Code or other criminal offences. An offence under Section 138 of the Negotiable Instruments Act, 1881, is almost in the nature of a civil wrong which has been given criminal overtones. The notice was issued by way of registered post and its presumption of service under Section 27 of General Clauses Act may be after thirty days but the trial Judge has presumed service within 2 to 3 days on the ground that drawer and drawee of cheque, both were resident of city Gorakhpur. Hence, presumption of service is to be within 2 to 3 days and on the basis of this presumption, the complaint has been held to be of time barred. Accordingly, prosecution has been dismissed. Hence, this revision. 4. Even after service of notice to opposite party no. 2, none appeared to oppose this criminal revision. 5. Learned AGA has vehemently opposed this criminal revision with this contention that learned trial Court has appreciated facts and law and has passed impugned order in accordance with law. 6. Having heard learned counsels for both sides and gone through the material on record, it is apparent that in this case, a complaint was filed by Rajanikant Mani Tripathi against Kiran Yadav, for an offence punishable under Section 138 of N.I. Act, P.S. Kotwali, District Gorakhpur, with this contention that Kiran Yadav received Rs. 4 lacs by cash as well as cheque, for construction work as well as payment of E.M.I. of bus from complainant and in lieu of said liability, issued a Cheque No. 788900 of Punjab and Sindh Bank, Golghar, Gorakhpur, of her account, for Rs. 1,60,000/- on 23.10.2017. This cheque was deposited in the Bank of complainant ICICI Bank, Bank Road, Gorakhpur, in his account, in first week of November. But it was dishonored by bank memo dated 14.11.2017, for insufficiency of amount. This was received by complainant on 22.11.2017. 1,60,000/- on 23.10.2017. This cheque was deposited in the Bank of complainant ICICI Bank, Bank Road, Gorakhpur, in his account, in first week of November. But it was dishonored by bank memo dated 14.11.2017, for insufficiency of amount. This was received by complainant on 22.11.2017. Then after, within thirty days, a payment notice through counsel by registered post was issued to drawer of cheque on 18.12.2017. It was received by drawer but payment was not made. Hence, this complaint was filed in the computer Section of the Court concerned on 15.2.2018. Thereafter, it was registered on 16.2.2018. Complainant-Rajanikant Mani Tripathi was examined by way of affidavit under Section 200 of Cr.P.C. whereas documentary evidence-notice issued as payment notice dated 18.12.2017, receipt of registered post dated 18.12.2017, concerned cheque dated 23.10.2017, dishonour memo dated 14.11.2017, was annexed with affidavit. The offence punishable under Section 138 of N.I. Act was said to be made out and was requested for punishment. Learned Trial Judge dismissed this complaint under Section 203 of Cr.P.C. that too, on the ground of being time barred. The main contention was about presumption of service of notice, which was said to be after thirty days from date of issuing notice by way of registered post and non-return of same to sender, under Section 27 of General Clauses Act, whereas learned presiding Judge held that complaint ought to be filed within 2.2.2018 but it was filed on 15.2.2018 and service of notice may be presumed to be sufficient within 24 to 48 hours. Hence, the main question was about time limit for presuming service of notice, sent by way of registered post, in accordance with Section 27 of General Clauses Act. 7. Section 27 of General Clauses Act 1897, provides:- Meaning of service by post - [Where any Central Act] or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression “serve” or either of the expressions “give” or “send” or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. This Court in Smt. Vandana Gulati vs. Gurmeet Singh alias Mangal Singh, AIR 2013 All 69 , has held that notice sent by registered post to the person concerned at the proper address shall be deemed to be served upon him in the due course unless contrary is proved. Endorsement “not claimed/not met” is not sufficient to prove deemed service of the notice. 8. Apex Court in Subodh S. Salaskar vs. Jayprakash M. Shah and Another in Criminal Appeal No. 1190 of 2008 and SLP (Crl.) No. 541 of 2008, while reiterating three Judges Bench decision of Apex Court in C.C. Alavi Haji vs. Palapetty Muhammed and Another, (2007) 6 SCC 555 , has propounded that presumption of service, under the statute is arises not only when it is send by registered post in terms of Section 27 of General Clauses Act. But such presumption may be raised also under Section 114 of Evidence Act. In paragraph No. 17 of C.C. Alavi Haji's case (supra):- “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 GC 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. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran case 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.” (Emphasis supplied) 9. In paragraph No. 23 of Subodh S. Salaskar's case (supra):- “23. The complaint petition admittedly was filed on 20.04.2001. The notice having been sent on 17.01.2001, if the presumption of service of notice within a reasonable time is raised, it should be deemed to have been served at best within a period of thirty days from the date of issuance thereof, i.e. 16.02.2001. The accused was required to make payment in terms of the said notice within fifteen days thereafter, i.e. on or about 02.03.2001. The complaint petition, therefore, should have been filed by 02.04.2001.” 10. Meaning thereby, presumption of service of notice within a reasonable time is to be raised. It should be deemed to have been served at best within a period of thirty days from the date of issuance thereof. Meaning thereby, the reasonable period for presumption of service may be up to 30 days from date of its issuance. Hence, in present case, notice issued was said to be served and it was issued on 18.12.2017. It was sent through speed post and it was deemed to be sufficiently served up to 17.1.2018 and within fifteen days payment was not made. Then after within thirty days this complaint was filed. Hence, apparently this complaint was not time barred. The presumption made by trial Judge for service of notice on 20.12.2017 is not in accordance with principles laid by Apex Court, as above in Subodh S. Salaskar's case (supra) and in Dr. Vinod Shivappa vs. Nanda Belliappa, AIR 2006 SC 2179 as well as Section 27 of General Clauses Act, 1897. Hence, on the basis of statement recorded under Section 200 and documentary evidence given under Section 202 of Cr.P.C. offence punishable under Section 138 of N.I. Act was, prima facie, made out. But learned trial Court has failed to appreciate facts and law, has presumed service of notice within 20.12.2017 and has dismissed complaint. Hence, on the basis of statement recorded under Section 200 and documentary evidence given under Section 202 of Cr.P.C. offence punishable under Section 138 of N.I. Act was, prima facie, made out. But learned trial Court has failed to appreciate facts and law, has presumed service of notice within 20.12.2017 and has dismissed complaint. This order is apparently erroneous on the face of it and is under mis-exercise of jurisdiction of learned trial Court. Accordingly, this revision merits its allowance. 11. Allowed. 12. Impugned order dated 7.2.2020 is being set aside. File is remanded back to trial Court concerned for hearing and passing order afresh, at an earliest.