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2021 DIGILAW 1561 (ALL)

Dhiraj Gupta v. State of U. P.

2021-12-15

KRISHAN PAHAL

body2021
JUDGMENT : 1. Heard Sri Anil Mullick, learned counsel for the applicant, learned AGA for the State-respondent and also perused the material available on record. 2. By means of the present application under Section 482 Cr.P.C., the applicant has invoked inherent jurisdiction of the Court with a prayer to quash the summoning order dated 02.09.2008 passed by Additional Civil Judge (Junior Division)/Judicial Magistrate, Court No.2, Meerut, in Case No.2126 of 2008, Imran Khan Vs. Dhiraj Gupta, under Section 138 of Negotiable Instruments Act, Police Station- Sadar Bazar, District- Meerut. 3. Facts, in brief, giving rise to the present application are that the complaint under Section 138 of Negotiable Instruments Act has been filed by the complainant Imran Khan wherein it has been alleged that the applicant Dhiraj Gupta had borrowed Rs.60,000/- from the complainant for his business and issued a post-dated cheque no.903149 dated 25.02.2008 to the tune of Rs.60,000/- of Gym Khana Branch, Meerut of Punjab National Bank. The complainant had deposited the cheque on 29.02.2008 and the same was bounced with the remark “funds insufficient”. A demand notice was sent by registered post to the applicant within a limitation period of 15 days. The receipt of said notice is said to have not returned to the complainant. An affidavit was filed regarding the statement recorded under Section 200 Cr.P.C. The applicant herein is said to have not returned the borrowed money even after sending the notice and the cheque having bounced. The learned Magistrate has summoned the applicant vide order dated 02.09.2008. It has been argued that the impugned order dated 02.09.2008 has been passed without application of mind and is a cryptic order. Learned counsel for the applicant has vehemently argued that there is no receipt regarding service of notice sent on behalf of the complainant/opposite party no.2. 4. Learned AGA has opposed the application and stated that the order impugned passed by the learned Magistrate is a detailed and speaking order. The order mentions the crux of the offence, the statement of the witnesses and the documents relied thereupon, therefore, the application deserves to be dismissed. 5. Learned AGA has also contended that in view of Section 94 of the Negotiable Instruments Act, 1881, the service of notice cannot be termed as insufficient. 6. The order mentions the crux of the offence, the statement of the witnesses and the documents relied thereupon, therefore, the application deserves to be dismissed. 5. Learned AGA has also contended that in view of Section 94 of the Negotiable Instruments Act, 1881, the service of notice cannot be termed as insufficient. 6. For ready reference, Section 94 of the Negotiable Instruments Act, 1881 reads as under:- “Notice of dishonour may be given to a duly authorized agent of the person to whom it is required to be given, or, where he has died, to his legal representative, or, where he has been declared an insolvent, to his assignee; may be oral or written; may, if written, be sent by post; and may be in any form; but it must inform the party to whom it is given, either in express terms or by reasonable intendment, that the instrument has been dishonoured, and in what way, and that he will be held liable thereon; and it must be given within a reasonable time after dishonour, at the place of business or (in case such party has no place of business) at the residence of the party for whom it is intended. If the notice is duly directed and sent by post and miscarries, such miscarriage does not render the notice invalid.” 7. Section 17 of the General Clauses Act, 1897, reads as under:- “Substitution of functionaries (1) In any [Central Act] or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of indicating the application of a law to every person or number of persons for the time being executing the functions of an office, to mention the official title of the officer at present executing the functions, or that of the officer by whom the functions are commonly executed. (2) This section applies also to all [Central Acts] made after the third day of January, 1868, and to all Regulations made on or after the fourteenth January, 1887.” 8. In the case of Ajeet Seeds Limited Vs. K. Gopala Krishnaiah, reported in AIR 2014 SC 3057 , Hon’ble the Apex Court has held in para-9 of sub-para-14 as under:- “Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In the case of Ajeet Seeds Limited Vs. K. Gopala Krishnaiah, reported in AIR 2014 SC 3057 , Hon’ble the Apex Court has held in para-9 of sub-para-14 as under:- “Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement 'refused' or 'not available in the house' or 'house locked' or 'shop closed' or 'addressee not in station', due service has to be presumed. [Vide Jagdish Singh v. Natthu Singh, (1992) 1 SCC 647 ; State of M.P. v. Hiralal and Ors., (1996) 7 SCC 523 and V. Raja Kumari v. P. Subbarama Naidu and Anr., (2004) 8 SCC 74 ] It is, therefore, manifest that in view of the presumption available Under Section 27 of the Act, it is not necessary to aver in the complaint Under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved.” 9. The powers under Section 482 Cr.P.C. can be invoked in the matter as follows:- (i) To give effect to any order under the Code. (ii) To prevent abuse of the process of any Court. (iii) Otherwise to secure the ends of justice. 10. "Ex debito justitae" to do real and substantial justice for the administration of justice alone the Court exists. The aforesaid law has been settled in AIR 2005 SC 4135 (State of Punjab vs. Kasturi Lal and others). 11. The inherent powers should not be exercised to stifle the legitimate prosecution and it should not be exercised at the drop of pen. The aforesaid law has been settled in AIR 2005 SC 4135 (State of Punjab vs. Kasturi Lal and others). 11. The inherent powers should not be exercised to stifle the legitimate prosecution and it should not be exercised at the drop of pen. The present application does not fall under any of the categories enumerated under Section 482 Cr.P.C. or enunciated in the case of State of Haryana and Others Vs. Bhajan Lal and Others reported in 1992 Supp.(1) SCC 335 and the relevant paragraph no.102 of the judgement is extracted hereunder:- "102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers Under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. 1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima-facie constitute any offence or make out a case against the accused. 2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code. 5. 4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code. 5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 12. Considering the submissions advanced by the learned counsel for the parties and the judgements referred above as also perused the material available on record, this Court is of the considered opinion that the service of notice through registered post was proper and there was no rebuttal evidence to show that the complainant had deliberately and intentionally sent the legal notice to some wrong address or that the applicant had resided at some other place. Furthermore, the applicant must have the knowledge of the cheque having bounced from his bank statement also. The receipt of notice or its service on the applicant is a matter of fact which can only be seen by the Trial Court. The impugned order, therefore, warrants no interference. 13. The present application is found devoid of merits and is hereby dismissed. 14. Interim order, if any, stands vacated. 15. Certify this order to the Lower Court immediately.