Research › Search › Judgment

Himachal Pradesh High Court · body

2022 DIGILAW 115 (HP)

Sohan Lal Vinod Kumar S/o Shri Sohan Lal v. Raj Kumar S/o Shri Ram Parkash

2022-03-17

SANDEEP SHARMA

body2022
ORDER : 1. By way of instant petition filed under Section 482 of the Code of Criminal Procedure, prayer has been made on behalf of the petitioner for quashing and setting aside the order dated 7.4.2021, passed by learned Additional Sessions Judge, Ghumarwin, District Bilaspur, H.P. in Criminal Revision No. 31-10 of 2019, affirming the orders dated 16.4.2019 and 2.9.2019, passed by learned Judicial Magistrate 1st Class, Bilaspur, District Bilaspur, Himachal Pradesh, in case No. 163-03 of 2017, whereby trial Court after having recorded the preliminary evidence of the respondent-complainant ( hereinafter referred to as the complainant) arrived at a conclusion that there is sufficient material to proceed against the accused for having committed the offence under Section 138 of the Negotiable Instruments Act (for short Act) and accordingly summoned him to the Court for 24.08.2018 and thereafter vide order dated 2.9.2019 put notice of accusation to him, to which he pleaded not guilty and claimed trial. 2. Precisely, the facts of the case as emerge from the record are that the respondent-complainant instituted a complaint under Section 138 of the Act in the Court of learned Judicial Magistrate 1st Class, Bilaspur, District Bilaspur, H.P. alleging therein that petitioner-accused with a view to discharge his lawful liability issued cheque bearing No. 627312, dated 17.07.2017 for sum of Rs. 1,33,300/- drawn at Punjab National Bank, Branch Officer Talyana, District Bilaspur, Himachal Pradesh in his favour. However, fact remains that aforesaid cheque on its presentation was dishonoured on account of insufficient fund. Since accused despite having received legal notice served upon him by the complaint failed to make the payment good, complainant instituted the complaint under Section 138 of the Act against the accused in the competent court of law. 3. Having taken cognizance of the complaint and after recording preliminary evidence, learned court below vide order dated 16.4.2018 found sufficient grounds to proceed against the accused for his having committed offence punishable under Section 138 of the Act and accordingly summoned him for 24.08.2018. On 2.9.2019, learned court below put notice of accusation to the accused of his having committed offence under section 138 of the Act, to which he pleaded not guilty and claimed trial. 4. On 2.9.2019, learned court below put notice of accusation to the accused of his having committed offence under section 138 of the Act, to which he pleaded not guilty and claimed trial. 4. Being aggrieved with the summoning order dated 16.4.2018 and thereafter notice of accusation put vide order dated 2.9.2019, accused preferred Criminal Revision Petition No. 31-10 of 2019, in the court of Additional Sessions Judge, Ghumarwin, District Bilaspur, H.P on the ground that since respondent-complainant failed to issue notice within a period of 30 days from the date of receipt of return memo from the bank concerned, complaint having been filed by him ought to have rejected. 5. Precisely, the case of the petitioner-accused before the Additional Sessions Judge was that vide memo dated 19.7.2017 bank concerned had apprised the respondent-complainant with regard to dishonouring of cheque and as such, he ought to have served legal notice within 30 days from that date, but in the case at hand, legal notice was issued to the petitioner-accused on 19.8.2017 i.e. after expiry of 30 days. Learned Additional Sessions Judge in its order though found that cheque in question was returned vide memo dated 19.7.2017 issued by the Punjab National Bank to State Bank of India, but observed that it cannot be presumed that information with regard to same was given to the complainant on the same day by State Bank of India. He further observed in the order that though time limitation provided under the act is mandatory and non-compliance thereof is fatal, but the question whether return memo dated 19.7.2017 was received by the complainant on 19.7.2017 is a triable issue and cannot be decided in the instant proceedings. In the aforesaid background, petitioner-accused has approached this Court in the instant proceedings, praying therein to set-aside the aforesaid order dated 7.4.2021 passed by learned Additional Sessions Judge as well as orders dated 16.4.2018 and 2.9.2019 passed by learned Judicial Magistrate 1st Class, Bilaspur, District Bilaspur, H.P. 6. Having heard learned counsel representing the parties and perused the material available on record vis-a-vis reasoning assigned in the order passed by learned Additional Sessions Judge, Ghumarwin, District Bilaspur, H.P. this Court does not find any illegality and infirmity in the same and as such, no interference is called for. 7. Having heard learned counsel representing the parties and perused the material available on record vis-a-vis reasoning assigned in the order passed by learned Additional Sessions Judge, Ghumarwin, District Bilaspur, H.P. this Court does not find any illegality and infirmity in the same and as such, no interference is called for. 7. Learned Additional Sessions Judge while passing order impugned in the instant proceedings has rightly observed that the question whether return memo dated 19.7.2017 was received by the complainant on the same day is a question to be decided on the basis of evidence led on record by the respective parties and otherwise it being triable issue cannot be decided in the instant proceedings i.e. criminal revision. Hon’ble Apex Court in Ajeet Seeds Limited vs. K. Gopala Krishnaiah, (2014) 12 SCC 685 , has categorically held that notice was duly served on the respondent or otherwise is a triable issue and cannot be proceeded as indisputable position. It is profitable to reproduce Para No. 10 and 11 of the aforesaid judgment herein-below: “10. It is thus clear that Section 114 of the Evidence Act enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. Section 27 of the GC Act gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. It is not necessary to aver in the complaint that in spite of the return of the notice un-served, 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. 11. Applying the above conclusions to the facts of this case, it must be held that the High Court clearly erred in quashing the complaint on the ground that there was no recital in the complaint that the notice under Section 138 of the NI Act was served upon the accused. The High Court also erred in quashing the complaint on the ground that there was no proof either that the notice was served or it was returned unserved/unclaimed. That is a matter of evidence. The High Court also erred in quashing the complaint on the ground that there was no proof either that the notice was served or it was returned unserved/unclaimed. That is a matter of evidence. We must mention that in C.C. Alavi Haji, this Court did not deviate from the view taken in Vinod Shivappa, but reiterated the view expressed therein with certain clarification. We have already quoted the relevant paragraphs from Vinod Shivappa where this Court has held that service of notice is a matter of evidence and proof and it would be premature at the stage of issuance of process to move the High Court for quashing of the proceeding under Section 482 of the Cr.P.C. These observations are squarely attracted to the present case. The High Court’s reliance on an order passed by a two-Judge Bench in Shakti Travel and Tours (2002) 9 SCC 415 misplaced. The order in Shakti Travel and Tours does not give any idea about the factual matrix of that case. It does not advert to rival submissions. It cannot be said therefore that it lays down any law. In any case in C.C. Alavi Haji (2007) 6 SCC 555 , to which we have made a reference, the three-Judge Bench has conclusively decided the issue. In our opinion, the judgment of the two-Judge Bench in Shakti Travel and Tours does not hold the field anymore.” 8. Hon’ble Apex Court has again reiterated aforesaid view taken by Hon’ble Apex Court in latest judgment passed in Cr. Appeal No. 1325 of 2019, titled as Kishore Sharma vs. Sachin Dubey, decided on 3rd September, 2019, wherein it has been held as under: “1. Leave granted. 2. Despite successive notices served on the respondent, he has chosen not to appear. The last notice clearly mentioned that the matter will be finally disposed of at notice stage. 3. The present appeal arises from the judgment and order dated 15.11.2018 passed by the High Court of Madhya Pradesh, Indore Bench in M.Cr.C. No. 17894 of 2018 whereby the High Court allowed the quashing petition filed by the respondent under Section 482 of Cr.P.C. on two counts. Firstly, that the legal notice has not been served on the respondent within the statutory period and secondly, because of the remark noted on the cheque return memo. 4. Firstly, that the legal notice has not been served on the respondent within the statutory period and secondly, because of the remark noted on the cheque return memo. 4. Both these facts would require the parties to produce evidence and are triable issues, as expounded by this Court in Ajeet Seeds Limited vs. K. Gopala Krishnaiah, (2014) 12 SCC 685 and Laxmi Dyechem vs. State of Gujarat and Others, (2012) 13 SCC 375 . As a result, even this appeal ought to succeed. The impugned judgment and order is accordingly set aside and the appeal is allowed.” 9. Consequently, in view of the discussion made hereinabove as well as law laid down by the Hon’ble Apex Court, this Court finds no illegality and infirmity in the impugned judgment passed by learned Additional Sessions Judge, Ghumarwin, District Bilaspur, Himachal Pradesh and same is upheld. 10. The present petition fails and is dismissed accordingly. However, it is made clear that any observation made by learned Additional Sessions Judge with regard to merits of the case shall have no bearing on the case, which otherwise shall be decided by the Court below on the basis of the pleadings, evidence as well as law. Pending applications, if any, also stands disposed of.