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Allahabad High Court · body

2022 DIGILAW 936 (ALL)

Sultan Alam v. State of U. P.

2022-06-06

RAJ BEER SINGH

body2022
JUDGMENT : 1. Heard learned counsel for the applicant, learned counsel for opposite party no. 2, learned A.G.A. for the State and perused the record. 2. This application under Section 482 Cr.P.C. has been filed with the prayer to quash the order dated 03.11.2020, passed by the learned Sessions Judge, Meerut in criminal revision no. 139 of 2020, (M. Kamal v. State of U.P. And Another), under Section 138 of Negotiable Instruments Act (hereinafter referred to as ‘N.I. Act’), police station Kotwali, district Meerut. 3. It has been argued by learned counsel for the applicant that the impugned order is against facts and law and thus, liable to be set aside. It was submitted that opposite party no. 2 has issued a cheque of Rs. 11 lacs in favour of applicant, which was presented in bank for encashment but it was dishonoured on 05.08.2015. The applicant has issued demand notice to opposite party no. 2 on 24.08.2015 at his last given address but it was returned back with endorsement dated 02.09.2015 to the effect that despite going for several times, opposite party no. 2 is not available at the given address. Thereafter, the applicant has filed a complaint under Section 138 of N.I. Act on 29.09.2015 and after applying the due procedure of law, the opposite party no. 2 was summoned by the court of Additional Chief Judicial Magistrate, Court no. 1, Meerut vide order dated 27.11.2015. It was further submitted that the said order dated 27.11.2015 was challenged by opposite party no. 2 by filing a criminal revision no. 139 of 2020 and the said revision was allowed by the court of Sessions Judge, Meerut vide impugned order dated 03.11.2020. Learned counsel submitted that in view of the report of postal department that despite going at the last given address of opposite party no. 2 for several times, the addressee is not available at the said address, it shall be deemed that notice has been duly served upon opposite party no. 2 and thus, the observation of the learned revisional court, that the presumption under Section 27 of General Clauses Act read with Section 139 of N.I. Act stands rebutted, is against law. Learned counsel submitted that the learned revisional court fell in error by disputing the service of notice upon opposite party no. 2. Further, the fact whether the said notice was duly served upon opposite party no. Learned counsel submitted that the learned revisional court fell in error by disputing the service of notice upon opposite party no. 2. Further, the fact whether the said notice was duly served upon opposite party no. 2 or not, has to be examined by the trial court during trial. Opposite party no. 2 was summoned by the trial court after considering all the relevant facts and material on record. Learned counsel submitted that impugned order is against facts and law and thus, liable to be set aside. In support of his contentions, learned counsel has placed reliance upon the following case laws:- (i) C.C. Alavi Haji v. Palapetty Muhammed And Ors., 2007(3) ACR 2738(SC) (ii) Ajeet Seeds Ltd. v. K. Gopala Krishnaiah, 2014(3) ACR 2763 (SC) (iii) Anil Kumar Goel v. State of U.P. And Another, (Application u/s 482 Cr.P.C. No. 14190 of 2014, decided on 07.06.2021) 4. Learned counsel for opposite party No. 2 has opposed the application and argued that there was no valid service of demand notice upon opposite party no. 2 and that even it was not specified in the complaint that when the cause of action arose and thus, the complaint of applicant was not maintainable and that the summoning order was rightly set aside by the learned revisional court. It was submitted that in fact regarding the dispute, applicant has filed two separate cases. Besides the present complaint under Section 138 of N.I. Act, the applicant has also filed another complaint under Section 420 IPC and in that matter also, the summoning order of the said case under Section 420 IPC was set aside by the learned revisional court and against the order of learned revisional court, the application under Section 482 Cr.P.C. of applicant has already been dismissed by the High Court. Learned counsel further submitted that service of notice upon opposite party no. 2 was a necessary condition for filing the complaint under Section 138 of N.I. Act. Learned revisional court has given detailed reasons for setting aside the summoning order and that there is no illegality or perversity in the impugned order. In support of his contentions, learned counsel has placed reliance upon the case of Ali Jan v. State of U.P. And Another (Application under Section 482 Cr.P.C. No. 98 of 2020), decided on 31.01.2020. 5. Learned revisional court has given detailed reasons for setting aside the summoning order and that there is no illegality or perversity in the impugned order. In support of his contentions, learned counsel has placed reliance upon the case of Ali Jan v. State of U.P. And Another (Application under Section 482 Cr.P.C. No. 98 of 2020), decided on 31.01.2020. 5. I have considered the rival submissions of learned counsel for the parties and perused the record. 6. Dealing with similar issue, in the case of Ajeet Seeds Ltd. (supra), the Hon’ble Apex Court has held (in paragraph nos. 10 and 11) as under: 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 G.C. 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 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. 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. 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. 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 & Tours is misplaced. The order in Shakti Travel & 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, 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 & Tours does not hold the field any more. 7. In the case of C.C. Alavi Haji (supra), the Hon’ble Apex Court has observed (in para nos. 13, 14 and 17) as under:- 13. 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 Vs. Natthu Singh ; State of M.P. Vs. 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 Vs. Natthu Singh ; State of M.P. Vs. Hiralal & Ors. and V.Raja Kumari Vs. P.Subbarama Naidu & Anr.] 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. 14. Insofar as the question of disclosure of necessary particulars with regard to the issue of notice in terms of proviso (b) of Section 138 of the Act, in order to enable the Court to draw presumption or inference either under Section 27 of the G.C. Act or Section 114 of the Evidence Act, is concerned, there is no material difference between the two provisions. In our opinion, therefore, when the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of Clause (b) of proviso to Section 138 of the Act stands complied with. It is needless to emphasise that the complaint must contain basic facts regarding the mode and manner of the issuance of notice to the drawer of the cheque. It is well settled that at the time of taking cognizance of the complaint under Section 138 of the Act, the Court is required to be prima facie satisfied that a case under the said Section is made out and the aforenoted mandatory statutory procedural requirements have been complied with. It is then for the drawer to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the cover was incorrect or that the letter was never tendered or that the report of the postman was incorrect. It is then for the drawer to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the cover was incorrect or that the letter was never tendered or that the report of the postman was incorrect. In our opinion, this interpretation of the provision would effectuate the object and purpose for which proviso to Section 138 was enacted, namely, to avoid unnecessary hardship to an honest drawer of a cheque and to provide him an opportunity to make amends. 17. In the instant case, the averment made in the complaint in this regard is: Though the complainant issued lawyers notice intimating the dishonour of cheque and demanded payment on 4.8.2001, the same was returned on 10.8.2001 saying that the accused was out of station. True, there was no averment to the effect that the notice was sent at the correct address of the drawer of the cheque by registered post acknowledgement due. But the returned envelope was annexed to the complaint and it thus, formed a part of the complaint which showed that the notice was sent by registered post acknowledgement due to the correct address and was returned with an endorsement that the addressee was abroad. We are of the view that on facts in hand the requirements of Section 138 of the Act had been sufficiently complied with and the decision of the High Court does not call for interference. 8. In the case of Anil Kumar Goel (supra), it was held by co-ordinate Bench of this Court as under: Coming to the facts of the present case, the notice having been sent on 19.09.2012, if the presumption of service of notice within a reasonable time is raised, shall be deemed to have been served, at best within a period of 30 days from the date of issuance thereof i.e. 19.09.2012. The applicant was required to make payment in terms of the said notice within 15 days thereafter i.e. on or about 3.11.2012. The complaint, therefore, should have been filed by 03.12.12, Admittedly, the complaint was filed on 19.11.2012 and therefore, at this stage, it cannot be said that no proceedings under Section 138 of the Act could be drawn against the applicant. The complaint, therefore, should have been filed by 03.12.12, Admittedly, the complaint was filed on 19.11.2012 and therefore, at this stage, it cannot be said that no proceedings under Section 138 of the Act could be drawn against the applicant. The Magistrate at the stage of summoning has only to see whether a prima facie case is made out or not. The factum of disputed service of notice requires adjudication on the basis of evidence and the same can only be done and appreciated by the trial court and not by this Court under the jurisdiction conferred by Section 482 Cr.P.C. 9. In the case of Ali Jan (supra), relied by learned counsel for opposite party no. 2, the co-ordinate Bench of this Court has held as under:- 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. 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). 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). 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. In view of above, the application under Section 482 Cr.P.C. stands allowed and the proceedings are quashed. 10. From the above-stated case of Ajeet Seeds Ltd. (supra), it is clear that it is not necessary to 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, the 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. Similar is the view taken in the case of Anil Kumar Goel (supra). 11. Keeping the aforesaid position of law in view, in the instant case, it may be observed that the summoning order passed by the court of Additional Chief Judicial Magistrate, Court No. 1, Meerut was quashed by the learned Sessions Judge, Meerut merely on the ground that in the complaint it has not been mentioned as to on which date the notice was served upon opposite party no. 2/drawer of the cheque and that in the absence of any such date of service of demand notice, the presumption under Section 27 of the General Clauses Act stands rebutted and thus, the mandatory conditions for institution of complaint under Section 138 of N.I. Act are not fulfilled. 2/drawer of the cheque and that in the absence of any such date of service of demand notice, the presumption under Section 27 of the General Clauses Act stands rebutted and thus, the mandatory conditions for institution of complaint under Section 138 of N.I. Act are not fulfilled. Here it may be mentioned that the complainant has filed the copy of the undelivered registered letter before the court below, wherein there is endorsement dated 02.09.2015 of postal department that ^^ckj ckj ?kj tkus ij rFkk lwpuk nsus ij Hkh izkIrdrkZ ?kj ugh feyrk gSA** It is not in dispute that the registered letter of demand notice was sent on the correct address of opposite party no. 2. Thus, in view of law laid down in case of Ajeet Seeds (Supra) and C.C. Alavi Haji (Supra), it shall be deemed that notice has been served upon the drawer/opposite party no. 2 on 02.09.2015. As noticed above, the complainant was not required to aver in the complaint that in spite of return of notice unserved, it is deemed to have been served. In view of these facts and circumstances of the case and above-stated position of law, it appears that the learned Sessions Judge did not consider the matter in correct perspective and committed error by setting aside the summoning order. Further, as observed in the case of Anil Kumar Goel (supra), the factum of disputed service of notice requires adjudication on the basis of evidence and the same can only be done and appreciated by the trial court. In view of the above position of law laid down by the Hon’ble Apex Court in the case of Ajeet Seeds Ltd. (supra), the law laid down in case of Ali Jan (supra), relied by learned counsel for opposite party no. 2, is of no help to the opposite party no. 2. 12. In view of the aforesaid, the impugned order dated 03.11.2020, passed by the learned Sessions Judge, Meerut is set aside and the summoning order passed by the court of Additional Chief Judicial Magistrate, Court no. 1, Meerut stand restored. The trial court shall proceed and decide the matter in accordance with law. 13. The instant application under Section 482 Cr.P.C. is allowed.