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2020 DIGILAW 286 (ALL)

Udain Sengar v. State of U. P.

2020-01-27

MANJU RANI CHAUHAN

body2020
JUDGMENT : 1. Heard Sri Jitendra Kumar Rawat holding brief of Sri Yogendra Kumar Srivastava, learned counsel for the applicant, Sri Amit Singh Chauhan, learned A.G.A. for the State and perused the entire record. 2. This application under Section 482 Cr.P.C. has been filed with a prayer to quash the impugned order dated 22.10.2019 passed by Additional District & Sessions Judge, Court No.5, Etawah passed in Criminal Revision No.18 of 2019 (Satyajeet Singh Bhadauria Vs. State of U.P. & another), under Section 138 of Negotiable Instrument Act (in short " N.I. Act"). 3. Brief facts of the case are that the applicant has filed a complaint No.451 of 2017 on 10.08.2017 under Section 138 of Negotiable Instrument Act against the opposite party no.2 stating therein that Rs.1 lac was taken by opposite party no.2 from the applicant (complainant) with the assurance that the same will be returned in six months. After expiry of the aforesaid period when the demand was raised to return the said money, a cheque no.269466 was issued on 11.05.2017 by the opposite party no.2 and when the applicant presented the cheque for the payment, the same was dishonored on account of "insufficient fund" on 12.05.2017. The legal notice was given on 03.06.2017 and when the opposite party no.2 did not pay any dues, the present complaint was filed. 4. Learned Judicial Magistrate vide order dated 18.01.2018 summoned the opposite party no.2 against which a Criminal Revision No.18 of 2019 was preferred by the opposite party no.2. The revisional court vide order dated 22.10.2019 allowed the revision by setting aside the order dated 18.01.2018 stating therein that the complaint was time barred. 5. Learned counsel for the applicant (complainant) states that Section 138 of N.I. Act is a penal provision, it must, therefore, be construed strictly. Section 138 (2) of N.I. Act enacting part of the provision makes it abundantly clear that what constitutes an offence punishable with imprisonment and/or fine is the dishonour of a cheque for insufficiency of funds, etc in the account maintained by the drawer with the bank for discharge of a debt or other liability whether in full or part. Section 138 (2) of N.I. Act enacting part of the provision makes it abundantly clear that what constitutes an offence punishable with imprisonment and/or fine is the dishonour of a cheque for insufficiency of funds, etc in the account maintained by the drawer with the bank for discharge of a debt or other liability whether in full or part. The language used in the provision is unambiguous and the ingredients of the offence clearly discernible namely (a) cheque is drawn by the accused on an account maintained by him with a banker, (b) the cheque amount is in discharge of a debt or liability, and (c) the cheque is returned unpaid for insufficiency of funds or that the amount exceeds the arrangement made with the bank. Any dishonour falling within the four corners of the enacting provision would be punishable. 6. Section 138 is arranged in two parts, the primary and the provisory. The contents of the proviso place conditions on the operation of the main provision, while it does not form a constituent of the crime itself, it modulates or regulates the crime in circumstances where, unless its provisions are complied with, the already committed crime remains impervious to prosecution. Section 142 employs the term "cause of action" as compliance with the three factors contained in the proviso are essential for the cognizance of the offence, even though they are not part of the action constituting the crime, therefore, so far as the offence itself, proviso has no role to play. 7. The proviso that comprises the second part of the provision, the following would constitute "cause of action" referred to in sub-clause (b) above: (a) The complainant has presented the cheque for payment within the period of six months from the date of the issue thereof; (b) The complainant has demanded the payment of the cheque amount from the drawer by issuing a written notice within thirty days of receipt of information by him from the bank regarding the dishonour; (c) The drawer has failed to pay the cheque amount within fifteen days of the receipt of the notice. 8. From the above, it is clear that the cause of action for prosecution will arise only when the period stipulated in the proviso elapses without payment. 9. 8. From the above, it is clear that the cause of action for prosecution will arise only when the period stipulated in the proviso elapses without payment. 9. It has been submitted by learned counsel for the applicant that in the present case the applicant (complainant) filed a complaint on 10.08.2017 regarding cheque no.267466 which was returned on 12.05.2017 due to insufficient funds. On 03.06.2017 the legal notice was given by the applicant to opposite party no.2 and since the date of receipt of notice is not mentioned in the complaint, therefore, as per law laid down in the case of Yogendra Pratap Singh Vs. Savitri Pandey & Another, reported in 2014 (10) SCC 713 , the cause of action will arise after 45 days of the date when the legal notice was sent. Para 42 of the aforesaid judgment states as follows :- "42. Section 142 of the NI Act prescribes the mode and so also the time within which a complaint for an offence under Section 138 of the NI Act can be filed. A complaint made under Section 138 by the payee or the holder in due course of the cheque has to be in writing and needs to be made within one month from the date on which the cause of action has arisen under clause (c) of the proviso to Section 138. The period of one month under Section 142(b) begins from the date on which the cause of action has arisen under clause (c) of the proviso to Section 138. However, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within the prescribed period of one month, a complaint may be taken by the Court after the prescribed period. Now, since our answer to question (i) is in the negative, we observe that the payee or the holder in due course of the cheque may file a fresh complaint within one month from the date of decision in the criminal case and, in that event, delay in filing the complaint will be treated as having been condoned under the proviso to clause (b) of Section 142 of the NI Act. This direction shall be deemed to be applicable to all such pending cases where the complaint does not proceed further in view of our answer to question (i). This direction shall be deemed to be applicable to all such pending cases where the complaint does not proceed further in view of our answer to question (i). As we have already held that a complaint filed before the expiry of 15 days from the date of receipt of notice issued under clause (c) of the proviso to Section 138 is not maintainable, the complainant cannot be permitted to present the very same complaint at any later stage. His remedy is only to file a fresh complaint; and if the same could not be filed within the time prescribed under Section 142(b), his recourse is to seek the benefit of the proviso, satisfying the Court of sufficient cause. Question (ii) is answered accordingly." 10. Learned counsel for the applicant has also relied upon the judgment of Apex Court in the case of Shakti Travels & Tours Vs. State of Bihar, 2002(9) SCC 415 , wherein the Apex Court has very categorically held that complaint is maintainable under Section 138 of N.I. Act only when it is filed after due service of notice as contemplated under Section 138 of N.I. Act. In another case of Deepak Kumar and another Vs. State of U.P. and another, 2006 (8) ADJ 427 , this court has very categorically held that service of notice is pre-condition to maintain a complaint under Section 138 of N.I. Act. Considering in detail meaning of effective service of notice prescribed as pre-condition to maintain the complaint, the Court vide para 9 and 10 held thus :- "9. Pondering over the rival contentions, I find that there is substance in the submissions raised by the counsel for the applicant. As a fact, neither in the complaint, nor in statement under Section 200, Cr. P.C. nor in the counter-affidavit any date of service on notice demanding repayment of cheque money from the applicants is mentioned. No document was also appended along with the complaint so as to indicate the said date. Even during the course of argument, the counsel for the respondent-complainant could not point out the date of service of such notice. Thus, in the total absence of date of service of notice demanding payment of the cheque amount, no offence is made out against the applicants. Even during the course of argument, the counsel for the respondent-complainant could not point out the date of service of such notice. Thus, in the total absence of date of service of notice demanding payment of the cheque amount, no offence is made out against the applicants. Moreover, it cannot be said that any such notice was ever served on the applicants and consequently fifteen days period for making the payment of the cheque money cannot be counted and unless that is done no offence is made out against the applicants. The contention of respondent-complainant that the service is to be presumed as also cannot be accepted because Section 27 of General Clauses Act does not take into its purview service by private courier. For a proper understanding of this submission Section 27 of the General Clauses Act is quoted below:-- "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." 10. Thus, the wordings of Section 27 of the General Clauses Act clearly indicates that this section deals only with service by ''Post' and that too "registered service" when such a service is contemplated by the Act itself. Attour. no other mode of service is embraced in Section 27. The condition precedent for the applicability of this section are firstly, that the service must be provided by the Act itself and secondly, that such "service shall be deemed to be affected by properly addressing, pre-paying and posting by registered post" (Emphasis mine). Unless the twin conditions are satisfied Section 27 of the General Clauses Act will not apply. In the present case the second condition is not satisfied and therefore the service of notice on the applicants cannot be presumed. Unless the twin conditions are satisfied Section 27 of the General Clauses Act will not apply. In the present case the second condition is not satisfied and therefore the service of notice on the applicants cannot be presumed. Since the legislature has kept service by private courier outside the purview of the Section 27 of the General Clauses Act, therefore the Courts cannot implant such presumption of service into that section and rightly so because private courier services are privately run businesses without any authenticity of service. (Emphasis mine) consequently, the contention of the learned counsel for the applicant that the service should be presumed in the present case cannot be accepted as it does not hold good on the provision of the statute itself and has to be rejected. Resultantly, the submission of the counsel for the applicant that in the present case no offence is made out holds good and deserves to be accepted and I hold so." Countering the argument, learned counsel for opposite party no.2 has submitted that condition of service of notice virtually stands complied with in view of the fact that the postal letter which was sent had come back with note "left", meaning thereby service was made effective. He further contends that the applicant having provided two different addresses, main address being of the firm and notice could have been sent only on that address, therefore, if the postmand could not meet the applicant on the said address, it cannot be said service has not been effected upon. Learned counsel for the opposite party no. 2 has further relied upon the judgment of Single Judge of this Court in the case of Chand Mohd v. State of U.P, Laws (All) 2017 5 308, in which this Court vide paragraphs 19 and 20 has held thus: 19. Perusal of Section 27 of the General Clauses Act, as aforequoted clearly indicates that there is a presumption of service by registered post. The provisions of the aforesaid Section 27 of the Act regarding presumption of service has been interpreted by Hon'ble Supreme Court and it has been held that there is a rebuttable presumption of service by registered post. Perusal of Section 27 of the General Clauses Act, as aforequoted clearly indicates that there is a presumption of service by registered post. The provisions of the aforesaid Section 27 of the Act regarding presumption of service has been interpreted by Hon'ble Supreme Court and it has been held that there is a rebuttable presumption of service by registered post. Reference in this regard may be had to the judgment of Hon'ble Supreme Court in the case of Gujarat Electricity Board v. Atmaram Sungomal Poshani12; Commissioner of Income Tax (Adm.), Bengal v. V.K. Gururaj and Ors.13, State of U.P. v. T.P. Lal Srivastava14; Adavala Suthaiah and Ors. Special Deputy Collector, Land Acquisition and Ors. Anr.15 and Shimla Development Authority and Ors. v. Santosh Sharma (Smt.) and Anr., (1997) 2 SCC 637 . 20. It has also been well settled by Hon'ble Supreme Court that when notice is sent at the correct address by registered post and neither acknowledgment nor undelivered registered cover is received back then there is presumption of service although rebut table. The burden to rebut presumption lies on the party challenging the factum of service. Reference in this regard may be had to the judgments of Hon'ble Supreme Court in the case of Indian Bank v. Datla Venkata Chinna Krishnam Raju; Ram Chandra Verma v. Jagat Singh Singhi and others; ATTABIRA Regulated Market Committee v. Ganesh Rice Mills; Union of India v. Ujagar Lal; C.C. Alavi Haji v. Palapetty Muhammed (Paras 10 & 15 ) and Sunil Kumar Shambhudayal Gupta (DR) and others v. State of Maharashtra (Paras 53 to 56). 11. Countering the argument, learned A.G.A. for the State has submitted that condition of service of notice virtually stands complied with in view of the fact that the postal letter which was sent and had come back with note "left", meaning thereby service was made effective. 12. Banking upon the judgment, learned counsel for the applicant submits that the complaint was ultimately maintainable and it cannot be said that mandatory requirement of law was not fulfilled. 13. Having heard the arguments advanced by both the parties, I find that the complaint was well within time taking into consideration the judgment of Yogendra Pratap Singh (supra). Therefore, the revisional order dated 22.10.2019 is set aside. 13. Having heard the arguments advanced by both the parties, I find that the complaint was well within time taking into consideration the judgment of Yogendra Pratap Singh (supra). Therefore, the revisional order dated 22.10.2019 is set aside. The matter is remitted back to the court concerned to decide the same afresh by passing a speaking and reasoned order in accordance with law in the light of the judgment of Apex Court in the case of Yogendra Pratap Singh (supra) within a period of six months from the date of production of certified copy of this order. 14. The application stands allowed.