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2020 DIGILAW 333 (ALL)

Ali Jan v. State of U. P.

2020-01-30

MANJU RANI CHAUHAN

body2020
JUDGMENT : 1. Heard Sri Pavan Kishore and Mr. Piyush Kishore Srivastava, learned counsel for the applicant and learned A.G.A. for the State. 2. Learned counsel for the applicant and the learned A.G.A. agree that the present application may be disposed of at this stage without calling for further affidavits in view of the order proposed to be passed today. 3. By means of this 482 Cr.P.C. application, the applicant has questioned summoning order dated 8th March, 2017 as well as the proceedings of complaint case under Section 138 of Negotiable Instrument Act, 1881 (hereinafter referred to as "N.I. Act") registered as Complaint Case No. 846 of 2016 (Ayub Hasan Vs. Master Ali Jan), pending in the court of learned Judicial Magistrate, Garh Mukteshwar, Hapur. 4. Learned counsel for the applicant has argued that it is admitted case of the opposite party no. 2 that though, the opposite party no. 2 has sent a notice dated 7th October, 2016, but the service of notice has not been effected and therefore, the complaint which has been filed on 7th November, 2016, is not maintainable as the time period of 15 days cannot be calculated as to when the notice has been given to opposite party no. 2. He has also submitted that there is no whisper about service of notice sent on 7th October, 2016. Under the circumstances, pre-condition as contained under Section 138 N.I. Act has remained uncomplied with and, therefore according to him, proceedings are clearly not maintainable under the Negotiable Instruments Act, 1881. 5. Learned counsel for the applicant has relied upon the judgment of the Apex Court in the Case of Shakti Travel and Tours v. State of Bihar reported in 2002 (9) SCC 415 , wherein the Supreme Court has very categorically held that complaint is maintainable under Section 138 of Negotiable Instrument Act, only when it is filed after due service of notice as contemplated under Section 138 N.I. Act. 6. Learned counsel for the applicant has further placed reliance upon the judgment of Single Judge of this Court in the case of Deepak Kumar and Another v. State of U.P. and Another, reported in 2006 (8) ADJ, 427, wherein this Court has very categorically held that service of notice is pre-condition to maintain a complaint under Section 138 of the 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. 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. 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. 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." 7. Learned counsel for the applicant has also placed reliance upon the judgment of this Bench in the case of Nawab Singh Vs. State of U.P. & Another (Application U/S 482 No. 2604 of 2020, decided on 21st January, 2020). 8. Countering the argument, learned A.G.A. has submitted that condition of service of notice virtually stands complied with. In support of his submission, the learned A.G.A. has placed relinace upon the judgment of Single Judge of this Court in the case of Chand Mohd v. State of U.P, reported in Laws (All) 2017 5 308. In paragraph nos. 19 and 20, the learned Single Judge 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. In paragraph nos. 19 and 20, the learned Single Judge 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 rebut table 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 Poshani; Commissioner of Income Tax (Adm.), Bengal v. V.K. Gururaj and Ors., State of U.P. v. T.P. Lal Srivastava; Adavala Suthaiah and Ors. Special Deputy Collector, Land Acquisition and Ors. Anr. 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 Muhammed21 (Paras 10 & 15 ) and Sunil Kumar Shambhudayal Gupta (DR) and others v. State of Maharashtra (Paras 53 to 56 )." 9. 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. 10. I have considered the submissions of the learned counsel for the applicant and the learned A.G.A. for the State and have gone through the records of the present application as well as the impugned order. Normally, this Court would have issued notice to opposite party no.2 to file counter affidavit but in view of mutual consent of learned counsel for the applicant and learned A.G.A. as recorded above, no purpose would be served by keeping the present application pending. Normally, this Court would have issued notice to opposite party no.2 to file counter affidavit but in view of mutual consent of learned counsel for the applicant and learned A.G.A. as recorded above, no purpose would be served by keeping the present application pending. However, liberty is reserved for opposite party no.2 to file an appropriate application, for modification or recall of this order, if he feels so aggrieved. 11. Having heard the arguments advanced across the Bar and pleadings advanced and having perused the record, I find two material aspects coming out from the pleadings very clearly: one that notice dated 7th October, 2016 infact was sent by registered post and, therefore, it cannot be said that notice was sent on itself, and second, it clearly comes out from the record that there is no whisper regarding effective service of notice at the end of the complainant in the complaint. The complainant has not mentioned as to when he received back envelop containing notice and whether after receiving envelop back he had made complaint or prior to that. Accordingly even if he made complaint after accepting of the notice from the post office with note 'left', he could have filed such complaint only after expiry of 15 days but it is not the case here. Secondly if he considers that service of notice was effected then in all probability complaint should have been filed only after expiry of 15 days, and the date of service would have been clearly mentioned in the complaint. In the absence of any such mention in complaint itself, no inference of effective service and requirement of 15 days prior notice can be presumed to have been complied with. 13. Under the circumstances, I am of the considered opinion that case of the complainant stands fully covered by the judgment of the Apex Court in the case Shakti Travel and Tours (supra) and in the case of Deepak Kumar and Another (supra). 14. 13. Under the circumstances, I am of the considered opinion that case of the complainant stands fully covered by the judgment of the Apex Court in the case Shakti Travel and Tours (supra) and in the case of Deepak Kumar and Another (supra). 14. So far judgment relied upon by counsel for the respondent is concerned, that refers to the word 'service', it cannot be doubted that in case if the service is refused or service by absence could not be made effective, service could be deemed sufficient as per law, but in any case 15 days time prescribed by law should always be fulfilled to maintain complaint under section 138 of N.I. Act, 1881, which is lacking in the present case. 15. In view of above, the application under Section 482 Cr.P.C. stands allowed and the proceedings are quashed. 16. It is however always open for opposite party no. 2 to proceed in accordance with law in the light of the judgment of Apex Court in the case of Yogendera Pratap Singh v. Savitri Pandey and Another, reported in 2014 LawSuit (SC) 793.