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2023 DIGILAW 501 (ALL)

Anwar Saifi v. State of U. P.

2023-02-20

KARUNESH SINGH PAWAR

body2023
ORDER : (Karunesh Singh Pawar, J.) 1. Heard learned counsel for the applicant and learned A.G.A. for the State. 2. In view of the order which is proposed to be passed, notice to respondent no. 2 is dispensed with. 3. By This petition, the petitioner has prayed for quashing the impugned proceeding of complaint case No. 3792/9 of 2016 as well as the summoning order dated 05.04.2016 passed by the learned trial court. 4. Brief facts of the case is that an offer was given by the applicant to the complainant to keep his money with him. Believing that the complainant deposited Rs 1,00,000/-with the applicant in presence of a witness and promised to pay him back anytime after 1 year. The complainant further gave different amounts on different dates and all those amounts were got entered into a passbook by the applicant. After one year, the complainant demanded his money back, then on 10.09.2015, a check of rupees Rs. 3,50,000/- drawn at Punjab National Bank numbered as 958870, and another check dated 20.09.2015 of Rs. 3,50,000/-, numbered is 958871 were given at the house of the complainant by the applicant-accused which were presented by the complainant at the concerned bank. Those cheques were dishonored due to insufficiency of funds. Then the complainant confronted with the applicant regarding the dishonor of cheque and then he asked him again to present the cheque on 23.12.2015 as he has deposited the amount in the bank. Again checks were presented on 23.12.2015, however, the cheques were dishonored by the bank on 29.12.2015 on account of of insufficient funds and were returned. 5. Thereafter, the compliment gave a notice dated 11.01.2016 through his Council to the applicant. It is alleged in the complaint that after receiving the notice, the applicant has not given any heed to the demand of the complainant neither he has made the payment, hence, the complaint was filed. 6. Learned counsel for the applicant submits that that there is no averment in the complaint disclosing the date of service to the applicant and therefore, the complaint case ought to have been dismissed as premature and summoning order should not have been passed. It is further submitted that even if the legal notice dated 11.01.2016 is accepted as served then also the complaint filed by the complainant is premature. 7. It is further submitted that even if the legal notice dated 11.01.2016 is accepted as served then also the complaint filed by the complainant is premature. 7. Having heard the learned counsel for the complainant and the learned A.G.A. and perusal of the record also including the summoning order which shows that the learned trial court has considered the fact that the cheques has been produced before the bank in the stipulated period of three months. Cheques were returned on 29.12.2015 and the notice was given by the complainant on 11.01.2016 and after prima facie being satisfied regarding the compliance of three conditions provided under Section 138 of N.I. Act, the summons appears to have been issued. Section 138 of N.I. Act is extracted below:- 138 Dishonour of cheque for insufficiency, etc., of funds in the account. Section 138 of N.I. Act is extracted below:- 138 Dishonour of cheque for insufficiency, etc., of funds in the account. —Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.— For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability.] Clause (b) of the aforesaid Section 138 of N.I. Act requires that the payee or the holder in due course of a cheque, has to make a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 30 days of the receipt of the information from the bank regarding the return of the cheque as unpaid. 8. A supplementary affidavit has been filed by the applicant which is taken on record which contains several documents filed by complainant in support of the complaint which also include two return memorandum of the bank dated 29.12.2015. Thereafter within 30 days i.e. on 11.01.2016 a notice has been given by the complainant to the accused-applicant through his counsel. Specific averment of giving notice has been made in the complaint to the effect that the complainant has given a notice dated 11.01.2016 through his counsel to the accused-applicant which has been received by the accused and has not given any reply. The mandatory requirement under 138 clause-b of N.I. Act is only that the complainant or the payee or holder of cheque has to make a demand for payment of the said amount of money by giving a notice in writing within 30 days of the receipt of information received by him from the bank. 9. In this case, the bank has dishonored both the cheques on 29.12.2015, return memo of the bank are on record. The notice has been given well within 30 days from 29.12.2015. The submission of learned counsel for the applicant is that there is no specific averment in the complaint regarding the date of service to the accused-applicant of the legal notice sent by the complainant, therefore, the entire proceedings are liable to be quashed. 10. The second contention is that even if the legal notice dated 11.01.2016 is accepted as served then also the complaint impugned has been filed on 09.02.2016 before the stage of maturity. The contention of the learned counsel for the applicant seems to be misconceived. 10. The second contention is that even if the legal notice dated 11.01.2016 is accepted as served then also the complaint impugned has been filed on 09.02.2016 before the stage of maturity. The contention of the learned counsel for the applicant seems to be misconceived. There is no requirement under Section 138 to disclose the date of service in the complaint, however, the only requirement is that a demand for payment of the said amount of money has to be made by the payee or holder in due course of the cheque by giving a notice in writing to the drawer of the cheque within thirty days of the receipt of information by him from the bank. In this case, that requirement has been complied by the complainant. There is categorical averment in the complaint that a legal notice has been given to the accused-applicant by the complainant through his counsel. The notice has been given within thirty days of the receipt of the information by the bank. 11. Along with the supplementary affidavit, the applicant has filed all the nine documents filed by the complainant along with the complaint. Among those documents, are two cheques as well as the registered AD by which the legal notice was sent. He has also filed the registered acknowledgment receipt which shows that the the registered post sent to the address of the accused-applicant has been received at his resident. Copy of the registered AD is also on record. 12. Learned counsel for the applicant has relied on the judgment of the SC in the case of "M.S. Shakti Travel and Tours Vs. State of Bihar, reported in 2022 (9) SCC 415". 13. A perusal of the aforesaid judgment shows in that case, in the complaint itself was not mentioned that the notice has been served, whereas in this case it is clearly mentioned in the complaint that the notice was given and it has been duly served. Therefore, the facts of the case of M.S. Shakti Travel and Tour (supra) are different from the present case. The of M. S. Shakti Travels and Tours (supra) is distinguishable on the facts. 14. In the present case, a demand has been made by the complainant by giving a legal notice through his counsel which has been sent by the registered post along with the acknowledgment due and as he received the acknowledgment due. The of M. S. Shakti Travels and Tours (supra) is distinguishable on the facts. 14. In the present case, a demand has been made by the complainant by giving a legal notice through his counsel which has been sent by the registered post along with the acknowledgment due and as he received the acknowledgment due. The argument advanced by the learned counsel for the applicant that there should be specific averment disclosing the date of service in the complaint in question, is misconceived. 15. The controversy has been settled by the Apex Court in the case of " (2007) 6 SCC 555 , C.C. Alavi Haji Vs. Palapetty Muhammed and another" and it has been held that there is no need to make such averment in the complaint for raising presumption as to service of notice in the said situation and in view of Section 27 of General Clauses Act, 1987 and Section 114 of Evidence Act, 1872, once the notice is sent by the registered post by correctly addressing the drawer of cheque, the service of notice deemed to have been effected. 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 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. 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. 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. 16. In the aforesaid case of C.C. Alavi Haji (supra), the averments made in complaint that the complainant issued lawyer's notice intimating dishonor of cheque and demanded payment on 04.08.2001, the same was returned on 10.08.2001 saying that the accused was out of station. There was no averment to the effect that the notice was sent at the correct address of the drawer or the cheque by "registered post acknowledgment due". However, since the returned envelope was annexed to the complaint which formed a part of the complaint which showed that notice was sent by registered post acknowledgment due to the correct address and was returned with an endorsement that "the adressee was in abroad". It was held by the Apex Court that requirement of Section 138 of N.I. Act have been sufficiently complied. Likewise in this case, the complainant has issued lawyers notice on 11.01.2016, intimating the dishonor of cheque and a demand of payment was made by that notice which was sent by registered post at the correct address of the drawer, the registered receipt is on record and acknowledgment from the receiver on piece of paper by one Jeenat on behalf of the complainant is on record which confirms that the notice was properly served. That signed document/receipt has been delivered to the complainant/sender which is filed along with the supplementary affidavit. Therefore, it cannot be said that legal notice sent to the applicant-accused has not been served. The registered receipt as well as registered AD have been filed as evidence along with the complaint which form part of the complaint. 17. In this case, clear avement has been made in the complaint that a legal notice demanding the money has been sent through his lawyer's by the complainant to the applicant-accused. The registered receipt as well as registered AD have been filed as evidence along with the complaint which form part of the complaint. 17. In this case, clear avement has been made in the complaint that a legal notice demanding the money has been sent through his lawyer's by the complainant to the applicant-accused. The registry receipt as well as the registered AD have been filed along with the complaint which forms part of the complaint, therefore it is unnecessary that specific date of service of legal notice to the applicant accused should have been mentioned. Law in this regard has been settled by the Apex Court in the aforesaid case of C.C. Alavi Haji (supra). 18. So far as the second limb of argument that the complaint is premature is concerned, it is evident that legal notice through registered post was sent by the complainant to the applicant-accused who are resident of the same district, therefore, in view of Section 27 of General Clauses Act, 1987 and Section 114 of the Evidence Act, 1872 once the notice is sent by the registered post by correctly addressing the drawer of the cheque, the service of notice is deemed to have been effected. As per Section 142(1) N.I. Act, complaint under the said Act is to be made within one month of the date on which the cause of action arises under clause (c) of the Proviso to Section 138 of N.I. Act. The notice was sent on 11.01.2016 on a local address by the registered post, hence, the service of notice is deemed to have been effected. The drawer of the cheque of the accused-applicant was supposed to make a payment of the said amount within 15 days of the receipt of such notice, which he has failed to pay. The complaint has been filed on 09.02.2018. 19. In this case the notice was sent on 11.01.2016 which shall be deemed to have been served on seven days on local address as it was sent through registered post. The drawer of the cheque/applicant-accused was supposed to make the payment of the said amount of money to the payee within 15 days of the receipt of notice, therefore, after expiry of 15 days within one month, the complaint could have been filed which has been done in this case. The drawer of the cheque/applicant-accused was supposed to make the payment of the said amount of money to the payee within 15 days of the receipt of notice, therefore, after expiry of 15 days within one month, the complaint could have been filed which has been done in this case. There is no substance in the argument of learned counsel for the applicant. 20. Even otherwise the applicant accused has filed the summons of learned trial court he has also filed the copy of the complaint as well as the other documents annexed with the complaint, therefore, it will be presumed that he has received the summons from the learned trial court along with the copy of the complaint under Section 138 of N.I. Act and therefore cannot contend that there was no proper service of notice as required under Section 138 of N.I. Act as held by the Apex Court in the aforesaid case of C.C. Alavi Haji (supra). Relevant para no. 17 is extracted. 17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of criminal law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the GC Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran case [ (1999) 7 SCC 510 : 1999 SCC (Cri) 1284] if the “giving of notice” in the context of Clause (b) of the proviso was the same as the “receipt of notice” a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act. 21. In view of the aforesaid discussions and the law laid down by the Apex Court, the petition fails and is accordingly dismissed.