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2023 DIGILAW 493 (ALL)

Man Singh v. State of U. P.

2023-02-20

KARUNESH SINGH PAWAR

body2023
JUDGMENT : (Karunesh Singh Pawar, J.) 1. Heard Shri Shiv Sagar Singh learned counsel for the petitioner as well as learned A.G.A. for the State. 2. Notices to respondent no. 2 are dispensed with. 3. Through this petition, the petitioner has challenged the impugned order dated 11.10.2021 passed by the Presiding Officer, Additional Court, Saharanpur in complaint case No. 877 of 2018 (Praveen Singh Vs. Man Singh), under Section 138 of N.I. Act, P.S. Sadar Bazar, District Saharanpur whereby the petitioner has been summoned for facing trail for an offence under Section 138 N.I. Act with regard to dishonor of alleged cheque dated 28.03.2018. 4. Brief facts of the case are that in order to discharge a legal recoverable debt or liability a cheque No. 004565 dated 28.03.2018 to the tune of Rs. 1,00,000/- was issued in favour of the complainant by the accused, the cheque was presented by the complainant in his bank account No. 3463556822, Central Bank of India, Naveen Nagar, Saharanpur for encashment. The cheque was returned back unpaid with an endorsement of the bank that payment stopped by the drawer. Again the cheque was presented by the complainant in his bank for encashment in his account, however, the same was again dishonoured on 25.06.2018 and the information regarding dishonouring of cheque was received by the complainant on 28.06.2018. The payment was again stopped by the drawer as per memo of the bank. The complainant thus issued a legal notice dated 07.07.2018 to the accused on his residential address through registered post which was evaded by the accused in collusion with the postal employees by mentioning an endorsement that the accused does not reside on this address. The second notice was sent by the complainant on 27.07.2018 through registered post which was also returned by the accused and was received by the complainant on 01.08.2018 and then on 20.08.2018, a complaint was filed by the complaint before the learned court below. 5. Earlier in the case under Section 138 of N.I. Act, vide order dated 17.1.2019, the learned trial court summoned the accused. Against that order, the accused filed a criminal revision No. 143/2019 "Man Singh Vs. State of U.P" which was allowed vide order dated 19.10.2019 by the learned Additional Sessions Judge, Court No. 6, Saharanpur and the order dated 17.01.2019 was set aside. Against that order, the accused filed a criminal revision No. 143/2019 "Man Singh Vs. State of U.P" which was allowed vide order dated 19.10.2019 by the learned Additional Sessions Judge, Court No. 6, Saharanpur and the order dated 17.01.2019 was set aside. The relevant part of the order passed by the Revisional Court is extracted below:- fuxjkuhdrkZ ds fo}ku vf/koDrk dk eq[; rdZ ;g Fkk fd psd vukn`r gksus dh eSeks fnukafdr 26-5-6-2018 dh gS rFkk dfFkr uksfVl fnukafdr 27-07-2018 dks fn;k x;k gSA bl izdkj mDr uksfVl 30 fnu ds vUnj ugha fn;k x;k gSA vk{ksfir vkns'k fnukafdr 17-01-2019 ds voyksdu ls Li"V gS fd mlesa fo}ku voj U;k;ky; }kjk uksfVl fn;s tkus dh frfFk@vof/k ds vkadyu djus gsrq vius vkns'k esa pSd vukn`r gksus dh lwpuk dh frfFk;ka 14-05-2018 o 25-06-2018 nf'kZr dh x;h gSA ;fn ckn okyh frfFk 25-06-2018 ls fnuksa dh x.kuk dh tk;s rks tks uksfVl fnukad 27-07-2018 dks i~jsf"kr fd;k x;k og 30 fnu ds ckn dk gSa fo}ku voj U;k;ky; }kjk bl lEcU/k esa vius vkns'k esa dksbZ foospuk ugha dh x;h gS fd 30 fnu i'pkr~ uksfVl Hksts tkus ij Hkh ifjokn fdl dkj.k ls iks"k.kh; gSA blds vfrfjDr ;gk¡ ;g Hkh mYys[kuh; gS vkSj blds ckn ,d uksfVl fnukad 07-07-2018 dks Hkh i~jsf"kr fd;k tkuk dfFkr fd;k gSA ftlds lEcU/k esa ir~jkoyh ij jftLV~jh jlhn Hkh nkf[kr gSA mDr nksuksa rF;ksa dh Hkh foospuk fo}ku voj U;k;ky; }kjk vius vkns'k esa ugha fd x;h gS] tks bl lEcU/k esa fu"d"kZ fudkyus esa egRoiw.kZ gks ldrh Fkh fd ikLro esa ifjoknh }kjk i~jsf"kr uksfVl le; lhek ds vUnj gS ;k ughaA bl izdkj mDr ifjfLFkfr;ksa esa fo}ku voj U;k;ky; }kjk ikfjr vkns'k iw.kZr;k rF;ksa ,oa lk{k;ksa ij vk/kkfjr ugha gSA fo}ku voj U;k;ky; }kjk vius esa fufgr {ksr~jkf/kdkj dk iw.kZr% i~j;ksx djus esa yksi fd;k x;k gSA vr% mDr vkns'k ;Fkkor~ cus jgus ;ksX; ugha gS fuxjkuh Lohdkj fd;s tkus ;ksX; gSA vkns'k i~jLrqr QkStnkjh fuxjkuh Lohdkj dh tkrh gSA fo}ku voj U;k;ky; }kjk ikfjr vkns'k fnukafdr 17-01-2019 fujLr fd;k tkrk gSA fo}ku voj U;k;ky; dks fujnsf'kr fd;k tkrk gS fd og mij dh x;h foospuk ds vk/kkj ij ;Fkksfpr uohu vkns'k ikfjr djuk lqfuf'pr djasA ir~jkoyh vfx~je dk;Zokgh gsrq fo}ku voj U;k;ky; i~jsf"kr dh tk;sA ir~jkoyh fnukad 13-11-2019 dks fo}ku voj U;k;ky; ds le{k is'k gks ifjoknh fnukad 13-11-2019 dks fo}ku voj U;k;ky; esa mifLFkr gksA 6. On remand, the matter was again heard for orders on summoning. In compliance of the observations made by the Revisional Court, the learned trial court has passed the impugned order dated 11.10.2022 summoning the accused. The relevant extract of the order is extracted below:- "In support of the complaint averments the complainant has filed an affidavit in which she has reiterated her complaint's averments. In addition to aforesaid preliminary evidence the complainant has also filed on record following documents--- 1. Cheque No. 004565 dated 28-3-2018 for the sum of Rs. 100,000/ in favour of the complainant 2. Bank memo dated 14-5-2018 showing cause of dishonour of the cheque as "payment stopped by drawer. 3. Bank memo dated 25-6-2018 showing cause of dishonour of the cheque as "payment stopped by drawer". 4. Copy of legal notice bearing date as 27-7-2018. 5. Registered postal receipt dated 07-7-2018 and 6. Registered postal receipt dated 27-7-2018. 7. Registered postal envelope issued against the accused on his residential address and returned undelivered bearing an endorsement of the postman dated 09-7-2018. 8. Registered postal envelope issued against the accused on his place of posting and returned back undelivered bearing endorsement of the postman dated 01-8-2018. The complainant not only in her complaint but even in her affidavit has specifically mentioned that lastly she had presented the cheque in dispute for encashment before her banker but it was dishonoured once again and she could get such information on 28-6- 2018. The veracity of this fact can only be ascertained after the conclusion of evidence. Therefore notices issued on 07 7-2018 against the accused on his residential address and then issued on his place of posting on 27-7-2018 will be deemed to have been issued within 30 days of the receipt of information of dishonour of cheque in dispute. Therefore at this stage the complainant succeeds in proving all ingredients of Section 138 of NI Act against the accused. So on the basis of the preliminary evidence of the complainant under Section 200 of Criminal Procedure Code and aforesaid documents the complainant at this stage appears to have been successful in prima facie establishing the necessary ingredients of Section 138 of NI Act as under:- 1. The cheque in dispute was issued by accused in order to discharge his legally enforceable debt or liability. 2. The cheque was presented for encashment within its validity period by the complainant. The cheque in dispute was issued by accused in order to discharge his legally enforceable debt or liability. 2. The cheque was presented for encashment within its validity period by the complainant. 3. The cheque was dishonored due to the reason "payment stopped by the drawer. 4. After being informed about dishonor of cheque the complainant within 30 days got issued the legal notice by way of registered post through his counsel. 5. Despite service of such notice the accused failed to pay the cheque amount within 15 days of the receipt of notice, 6 Thereafter the present complaint has been filed within time prescribed under Section 142(1)(b) of the NI Act. Therefore at this stage the complainant appears to have been. successful in proving all legal ingredients of Section 138 of Negotiable Instruments Act against the accused. So at this stage prima facie case under Section 138 of NI Act, against the accused is made out. Hence it appears reasonable and proper to summon the accused Maan Singh to face trial for an offence punishable under Section 138 of Negotiable Instruments Act. Order 1. Let the accused Maan Singh be summoned to face trial for an offence punishable under Section 138 of Negotiable Instruments Act 1881, for 07-01-2022 fixed for appearance. 2. Steps for service of summons be taken within 3 days in following modes:- (i) By way of ordinary process. (ii) By way of registered post with AD. (iii) By way of courier service. (iv) By way of e-mail, if possible. 3. Let the copies of the complaint and list of witnesses be filed within three days. 4. Compliance report along with postal and courier service receipts be filed positively by or before the date fixed." 7. Submission of learned counsel for the petitioner is that cheque was dishonoured on 26.06.2018 and the alleged notice was given on 27.07.2018 approximately after 30 days and thus, notice has not been given within 30 days as mandated under Negotiable Instrument Act. He further submits that in the complaint it has been mentioned by the complainant that information regarding dishonour of cheque was given on 28.06.2018 and subsequently a notice dated 07.07.2018 was sent to the accused. He further submits that in the complaint it has been mentioned by the complainant that information regarding dishonour of cheque was given on 28.06.2018 and subsequently a notice dated 07.07.2018 was sent to the accused. He further submits that the learned trial court while passing the summoning order order dated 17.01.2019 has not discussed the fact that as to whether the notice sent by the complainant was within time and the complaint can be maintainable after 30 days and therefore, the learned revisional Court on these grounds has remanded the matter to the learned trial court vide its order dated 19.10.2019. 8. Perusal of the record shows that cheque No. 004565 dated 28.03.2018 for a sum of Rs. 1,00,000/- issued in favour of the complainant was dishonoured on 14.05.2018 as per the bank memo filed with the complainant as payment was stopped by the drawer. Again when the cheque was presented second time in the bank it was again dishonoured showing the cause as payment was stopped by the drawer. As per the averment made in para 7 of the complaint, information regarding such dishonour of cheque was received by the complainant on 28.06.2018 and consequently registered legal notice dated 07.07.2018 was sent on the address of the accused. The postal receipt of the notice dated 07.07.2018 is on record. Thereafter again a notice was sent dated 27.07.2018 along with postal receipt which is also on record. Both the envelopes issued with legal notice on the address of the accused returned back not delivered with an endorsement of the postman dated 09.07.2018 and 01.08.2018. The complainant in para 6 of her complaint has categorically pleaded that she received information regarding dishonour of cheque on 28.06.2018 regarding that a registered notice was sent on 07.07.2018 on his correct residential address. Again a second legal notice was sent on 27.07.2018 on his official address. Both notices were returned with the endorsement. 9. Proviso (c) of Section 138 N.I. Act being a pre-condition for invoking Section 138 by giving a notice to the drawer of the cheque before filing a complaint under Section 138 of the Act which is a mandatory requirement appears to have been fulfilled by the complainant in this case. Both notices were returned with the endorsement. 9. Proviso (c) of Section 138 N.I. Act being a pre-condition for invoking Section 138 by giving a notice to the drawer of the cheque before filing a complaint under Section 138 of the Act which is a mandatory requirement appears to have been fulfilled by the complainant in this case. The argument of the petitioner that no notice dated 07.07.2018 has been given to him and only notice dated 27.07.2018 has been given after 30 days of the date of dishonour of cheque was the second time i.e. on 25.06.2018 is misconceived for the reason that in the complaint the bank memo dated 25.06.2018 showing the dishonour of the cheque is annexed, coupled with the categorical pleading of the complainant in para 7 of the complaint and it has also been pleaded that on 07.07.2018 the registered notice on the residential address of the accused was sent which was returned with an endorsement and thereafter again a registered notice dated 27.07.2018 was sent on the official address of the accused which was again returned with endorsement and was received on 01.08.2018, hence, the notice issued on 07.07.2018 as well as 27.07.2018 were deemed to have been issued within thirty days of the receipt of the information of dishonour of cheque in question. 10. At the stage of taking cognizance only prima facie case has to be seen. The basic facts regarding mode and manner of issuance of the notice to the drawer of the cheque have been narrated in the complaint. Once it is stated in the complaint that notice has been sent by the registered post to the address of the drawer, the due service has to be presumed in view of Section 27 of the General Clauses Act read with Section 114 of the Evidence Act. No further averment at this stage is required as per the judgment of the Apex Court passed in the case of "C.C. Alavi Haji Vs. Palapetty Muhammed and Another" reported in " (2007) 6 SCC 555 ". The relevant para 14 and 15 of the said judgment are extracted below:- "14. 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 "14. The relevant para 14 and 15 of the said judgment are extracted below:- "14. 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 "14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the co 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 : AIR 1992 SC 1604 ]; State of M.P. v. Hiralal [ (1996) 7 SCC 523 ] and V. Raja Kumari v. P. Subbarama Naidu [(2004) 8 SCC 774 : 2005 SCC (Cri) 393] .) 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. 15. 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 GC 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. 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. 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." 11. The purpose of notice is to give an opportunity to the drawer to pay the cheque amount within 15 days from the date of the receipt of notice so as to free from prosecution under Section 138 of Negotiable Instrument Act. Law in this regard has been settled by the Apex Court that at the time of taking cognizance of the complaint under Section 138 of the Act, the Court is to only prima facie satisfy that a case under said section is made out and the mandatory requirement have been complied with. The drawer will be having opportunity to rebut the said presumption about the service of notice at the appropriate stage of the trial. 12. Perusing this fact, learned trial court while passing the impugned order has held that notice dated 07.07.2018 and 27.07.2018 will be deemed to have been issued within 30 days of dishonour of cheque in dispute. 13. There is no infirmity in the impugned order passed by the learned trial court. The petition lacks merits and is accordingly dismissed. 12. Perusing this fact, learned trial court while passing the impugned order has held that notice dated 07.07.2018 and 27.07.2018 will be deemed to have been issued within 30 days of dishonour of cheque in dispute. 13. There is no infirmity in the impugned order passed by the learned trial court. The petition lacks merits and is accordingly dismissed. Office is directed to present this order to learned trial court.