This application under Section 482 Cr.P.C. has been filed seeking the quashing of impugned order dated 10.09.2009, passed by the learned Additional Chief Judicial Magistrate, Court No. 5, Allahabad as well as entire proceeding in Complaint Case No. 389 of 2009 (Girija Prasad v Shri Apurva), under sections 138 of the Negotiable Instruments Act (which is herein after referred to as "the Act") and 420 IPC, P.S. Dhoomanganj, District Allahabad pending in the court aforesaid.
List has been revised. Despite repeated calls none has appeared on behalf of the opposite party no. 2-Girija Prasad. Shri Siddharth, learned counsel for the applicants is present along with learned AGA. This application is of year 2010. In the wake of heavy pendency of cases in this Court where dockets are already bursting on their seams there is no justifiable reason to further procrastinate the matter. Pleadings have already been exchanged. This Court, therefore, deems it fit to proceed in the matter on the basis of the record and with the assistance of the learned AGA representing the State.
Shorn of unnecessary details, the basic facts of the case are enumerated below:
The two sons of the complainant were engaged in a contract work given by the accused applicant. It is alleged that Rs. Two Lacs were asked by the applicant from them. But as the amount was large they could not lend the aforesaid money. Thereafter, the accused approached the complainant, who is the father, and importuned before him for the same favour. In good faith, the complainant lent the aforesaid amount of money to the applicant after managing the same. Thereafter, when the money was not returned within the time promised, the complainant pleaded with the applicant and pressed to return the same. On this, the cheque No. 383015 dated 04.05.2009 amounting to Rs. Two Lacs was issued by the accused applicant which was drawn on the United Commercial Bank, Renukoot, Sonbhadra. When the aforesaid cheque was presented by the complainant in Dena Bank, Allahabad, the same got bounced and got dishonoured because of insufficiency of funds. When the complainant brought this fact to the notice of the accused, he tried to explain the event somehow and gave assurance to him. The cheque was again presented on 02.06.2009 but met with the same fate. Thereafter, when the matter was again taken up with the accused applicant, it was pleaded that for certain reasons the money could not come in the account of the accused. Therefore, having trust in the assurance again the cheque was presented for the third time on 15.06.2009 by the complainant but it is alleged that the accused applicant instructed the Bank not to pay and honour the cheque. The details about the dishonouring of the cheque for the third time as to when it was presented and how the desired amount firstly came in the account and then how the stop payment was done by the applicant, have all been given in the complaint and are not needed to be reproduced at any great length here again.
Suffice it to mention that when in this regard the Bank Manager was approached by the complainant, he was apprised about the stop-payment instruction given on behalf of the applicants. Under these circumstances, the complainant had to resort to the legal proceedings and, as was required, he sent a notice on the accused applicant, through his counsel by way of a registered post on 25.06.2009 wherein the accused was requested to make the payment good within fifteen days. The notice did not yield any result, therefore, the complainant brought the present complaint in-question against the applicant.
The trial court recorded the statement of the complainant under section 200 of the Code of Criminal Procedure and also considered the original cheque, Bank memo and the copy of the legal notice, which was furnished on behalf of the complainant during the course of enquiry. The court was satisfied on the prima facie basis that the offence under section 138 of the Negotiable Instruments Act was made out and therefore deemed it fit to summon the accused to face trial.
The only point pressed before this Court by the learned counsel for the applicants is that as the complaint filed in the court does not mention the date as well as other details about the manner of service of notice, therefore, the order of summoning passed by the court against the applicants ought to be quashed. The amount which is demanded by the complainant has to be paid within fifteen days after service of the notice on the person, who had issued the cheque. The submission is that the omission in the complaint about the date and other details of service is a fatal defect to the maintainability of the complaint. Learned counsel has also placed its reliance on two Apex Court's decisions:
1. Shakti Travel & Tours v State of Bihar & another [(2002) 9 SCC page 415] and
2. Rahul Builders v Arihant Fertilizers & Chemicals [(2008) 2 SCC page 321] Rebutting the contentions raised by the applicant's counsel, learned AGA has drawn attention of the Court to the averments made in paragraphh 12 of the counter affidavit filed on behalf of opposite party no. 2-Girija Prasad wherein it has been specifically mentioned that the notice contemplated under the Act was sent to the applicant on 25.06.2009 and the same was served upon the applicant on 27.06.2009. Photo copy of the document issued by the Post Office concerned regarding service of the notice has also been annexed as annexure no. 2 to the counter affidavit. Submission of the learned AGA is that submission placed forth by the learned counsel for the applicant lacks factual basis and mere omission of date in the complaint regarding the service, can be at the most called an irregularity which is curable and therefore, shall not go to the root of the matter especially in view of the fact that the fact of sending the notice through registered post and its specific date has been clearly mentioned in the complaint. Learned AGA has also cited some Apex Court decisions and also the decisions given by this Court. Much emphasis has been laid in the case of C.C. Alavi Haji v Palapetty Muhammed & another [(2007) 6 SCC 555] and Vinay Patni v State of U.P. & another [2013 (80) ACC 1].
I have considered rivals submissions made at Bar.
A complaint under the Act can be brought against the person who fails to make the payment within fifteen days after service of notice. If the notice is not served upon the person from whom the demand is being made, the matter shall definitely go to the root. But the situation would be wholly different, if the notice was duly issued and was also served duly on the drawer of the cheque and yet he failed to make the payment good. It is true that the date of service was not mentioned in the complaint yet it is very difficult to hold that the summoning of the accused was bad in the eyes of law even after the proof of the service having been seen by the court itself, which has been filed on behalf of the opposite party in the Court along with the counter affidavit. The fact which actually existed is that the notice was sent to the applicant through registered post on 25.06.2009. Another fact, which also existed as a matter of reality that it was also duly served upon the applicant soon thereafter on 27.06.2009 as the applicant also belongs to the same city of Allahabad, which is the residence of the complainant. Another relevant fact is that the complaint has been brought against the applicant within the stipulated period of time as has been contemplated by the Act. In all fairness, none of these facts could be very seriously disputed by the counsel during the course of his arguments. In such circumstances, both the referred citations before the Court are clearly distinguishable on facts as it appears that in those cases there was no material to indicate that the service of the notice was actually effected and, if at all it was, then on what date the notice was served. The facts of the present case are peculiar and, therefore, carve out a clear distinction. In the peculiar facts and circumstances of the case, the omission of the date of service in the complaint and the details of the manner of service indeed looks to be in a curable irregularity at the most. During the course of trial the details may be submitted by the complainant and even the accused shall have the right to rebut and demonstrate its falsity. If this Court adopts the course to quash the complaint because of the aforesaid omission and direct that another complaint be brought before the court after duly mentioning the date and then furnish the material in the court in the proof of the same, which the complainant has furnished here and is even otherwise going to furnish in all likelihood during the proceedings, which are pending, the same course shall be an unnecessary waste of precious time of the courts which are already saddled with enough work. The documents are already available on record and the court can very well look into the same. Even now, the applicant is also having full knowledge of the contents of notice and also the service of the notice. But the counsel has not expressed any inclination even now on behalf of the applicant to make the payment good. If it is the admitted position that a notice was issued and was actually served also then just because the same fact did not find its mention in the complaint and was brought in the notice of the court subsequently along with necessary proof, then in the view of the court such irregularity shall be a curable one. The power envisaged under section 482 Cr.P.C. are to prevent abuse of the court's process and this Court has serious doubts about the correctness and desirability of remanding the case back to the court below again for this very purpose, which in the considered view of this Court would itself be an ill-use of the process of the court. It shall be putting an uncalled for strain on the precious time of the trial court, which shall not serve any useful purpose in the long run.
It shall not be out of place to keep in perspective section 27 of the General Clauses Act and also section 114 of the Indian Evidence Act, 1872 for correct interpretation of law in this regard. For handy reference, it may be useful to extract section 27 of the General Clauses Act, which reads as follows:
"Section 27:
Meaning of service by post. Where any [Central Act] or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
It shall also be useful to extract the relevant provision of section 114 of the Indian Evidence Act, which reads as under:
Section 114 in The Indian Evidence Act, 1872 "The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustration:
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(f) That the common course of business has been followed in particular cases"
It is also relevant to take note of the fact that the complaint in question in no uncertain words finds the mention of the fact that the complainant had sent a notice through his counsel on 25.06.2009 to the accused applicant through registered post and had specifically requested the applicant to lift up the instruction of "stop payment", which was given to the drawer Bank on behalf of the accused and also to return back the money, which was due on him. It is also apparent on the face of record that in the statement recorded by the court also the complainant has in so many words repeated the same assertion that the notice was sent through registered post on the said date. The original cheque, payment memo and the copy of the notice have been furnished in the court below by the complainant.
This Court cannot loose sight of the fact that it is one of the prime aims of the Negotiable Instruments Act to generate an ambience of trust and implied faith on the Indian Banking system, which is one of the very significant arms of the Indian economy. Unscrupulous people who have the intent to dupe the innocent person often use the modus operandi of issuing cheques, even though they never desire the same to be honoured. Sometimes at the time of issuing cheques there may be fund in the Bank but at the time the cheque is presented at the Bank the amount is withdrawn prior to the same by the drawer. Some times there is a clandestine contrivance adopted by the malafide drawer, who on the one hand issues the cheque and on the other hand gives instructions to the Bank to stop payment of the same and not to honour the cheque.
In the present case as has been mentioned before that twice the cheque got dishonoured because of insufficiency of funds while on the third time when the same was presented, the cheque got dishonoured under somewhat extra ordinary circumstances, as, though momentarily, the amount was was sent to the account but soon thereafter was withdrawn, as per instructions given by the accused to the Bank. As is so obvious, the complainant was every time getting the dirty end of the stick. The legislature has aimed to discourage such kinds of exploitation of innocent persons, through the instrumentally of the ill use of Banking Institutions.
It has been further argued as to how the service was effected and the details of the service have not been furnished in the complaint. Both the above quoted sections of the Evidence Act as well as the General Clauses Act squarely takes care of such technical arguments, whenever, they are raised.
The combined reading of the above noted provisions of the Evidence Act as well as the General Clauses Act makes it clear that the twin provisions are well sufficient to answer the submissions advanced on behalf of the applicant. Though in the present matter also the language of complaint does not disclose whether the service was effected or not and if the notice was served then when, how and in what manner was it effected, but in view of the Court, the omissions of the details about the manner of service would not strike either at the maintainability of the complainant or the consequent proceedings thereupon. Sending notice through registered post by itself would be capable to raise the presumption of service and mentioning the other details of manner of service does not seem to be the requirement of law. In this regard a reference can also be made to the decision of the Apex Court given by a Bench of three judges in C.C. Alavi Haji (supra). The Apex Court was pleased to observe therein as follows:
9. All these aspects have been highlighted and reiterated by this Court recently in Vinod Shivappa#s case (supra). Elaborately dealing with the situation where the notice could not be served on the addressee for one or the other reason, such as his non availability at the time of delivery, or premises remaining locked on account of his having gone elsewhere etc; it was observed that if in each such case, the law is understood to mean that there has been no service of notice, it would completely defeat the very purpose of the Act. It would then be very easy for an unscrupulous and dishonest drawer of a cheque to make himself scarce for sometime after issuing the cheque so that the requisite statutory notice can never be served upon him and consequently he can never be prosecuted. It was further observed that once the payee of the cheque issues notice to the drawer of the cheque, the cause of action to file a complaint arises on the expiry of the period prescribed for payment by the drawer of the cheque. If he does not file a complaint within one month of the date on which the cause of action arises under Clause (c) of the proviso to Section 138 of the Act, his complaint gets barred by time. Thus, a person who can dodge the postman for about a month or two, or a person who can get a fake endorsement made regarding his non availability, can successfully avoid his prosecution because the payee is bound to issue notice to him within a period of 30 days from the date of receipt of information from the bank regarding the return of the cheque as unpaid. He is, therefore, bound to issue the notice, which may be returned with an endorsement that the addressee is not available on the given address. This Court held: #We cannot also lose sight of the fact that the drawer may by dubious means manage to get an incorrect endorsement made on the envelope that the premises has been found locked or that the addressee was not available at the time when postman went for delivery of the letter. It may be that the address is correct and even the addressee is available but a wrong endorsement is manipulated by the addressee. In such a case, if the facts are proved, it may amount to refusal of the notice. If the complainant is able to prove that the drawer of the cheque knew about the notice and deliberately evaded service and got a false endorsement made only to defeat the process of law, the Court shall presume service of notice. This, however, is a matter of evidence and proof. Thus even in a case where the notice is returned with the endorsement that the premises has always been found locked or the addressee was not available at the time of postal delivery, it will be open to the complainant to prove at the trial by evidence that the endorsement is not correct and that the addressee, namely the drawer of the cheque, with knowledge of the notice had deliberately avoided to receive notice. Therefore, it would be pre- mature at the stage of issuance of process, to move the High Court for quashing of the proceeding under Section 482 of the Code of Criminal Procedure.
The question as to whether the service of notice has been fraudulently refused by unscrupulous means is a question of fact to be decided on the basis of evidence. In such a case the High Court ought not to exercise its jurisdiction under Section 482 of the Code of Criminal Procedure.
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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 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. 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. As noticed above, the entire purpose of requiring a notice is to give an opportunity to the drawer to pay the cheque amount within 15 days of service of notice and thereby free himself from the penal consequences of Section 138. In Vinod Shivappa (supra), this Court observed: #One can also conceive of cases where a well intentioned drawer may have inadvertently missed to make necessary arrangements for reasons beyond his control, even though he genuinely intended to honour the cheque drawn by him. The law treats such lapses induced by inadvertence or negligence to be pardonable, provided the drawer after notice makes amends and pays the amount within the prescribed period. It is for this reason that Clause (c) of proviso to Section 138 provides that the section shall not apply unless the drawer of the cheque fails to make the payment within 15 days of the receipt of the said notice. To repeat, the proviso is meant to protect honest drawers whose cheques may have been dishonoured for the fault of others, or who may have genuinely wanted to fulfil their promise but on account of inadvertence or negligence failed to make necessary arrangements for the payment of the cheque. The proviso is not meant to protect unscrupulous drawers who never intended to honour the cheques issued by them, it being a part of their modus operandi to cheat unsuspecting persons.
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 G.C. 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. As observed in Bhaskaran's case (supra), 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."
There are many matters, which are subject to proof during the course of enquiry or trial. Everything, which may be required from the complaint to be produced in the trial cannot be expected to be produced before the court at the very outset always. If he does so it is better. But if he does not, the same shall not invalidate or render the complaint not maintainable.
Hon'ble Supreme Court in the aforesaid case has also kept intact the rights of the accused. The scope is open to him to adduce the evidence during the course of trial. If he again pleads that the service was never effected on him or that the endorsement of refusal to receive the notice or the note of non-availability of the accused, in a particular matter are non genuine and are in correct and have been managed wrongly by complainant, he can always rebut the same during trial.
The circumstances about the sufficiency of material at the stage of summoning the accused are also qualitatively different and are not so stringent as they are, when the court sits on final judgement to decide the guilt of the accused.
It may also be of value to note that the Hon'ble Supreme Court has even considered the possibility of cases, where a bonafide drawer under some compelling circumstances beyond his control, without any malafide intention, may fail to make necessary arrangements for payment. In such circumstances, the Apex Court adopted the view that even after receiving the summons from the court and the copy of the complaint, the accused can still make amends by squaring up the payment and demonstrate to the court his bonafide intention. It is obvious that the courts never want any well meaning person to suffer and even this Court in exercise of its inheritance jurisdiction may adopt a liberal attitude and put a period to the hardship of the innocent accused, if he has actually ameliorated the grievance of the complainant. Those are the cases where despite best intentions, a particular accused could not pay the demanded money because of the non communication of the notice. It is wholly different thing to have a genuine grievance because of the absence of the knowledge of the notice. But it is entirely different to carve out a grievance even though there existed none by raising technical pleas as has been done in this case. Hair-splitting technicalities cannot be allowed to thwart for defeat the object of the Act. This Court has also not been able to appreciate the dichotomy which was so palpable during the course of submissions made by the applicant's counsel in as much as on the one hand the absence of knowledge of the notice and its non communication and the prejudice caused because of the omissions of the details of the service and its manner in the complaint have been emphasised while on the other hand in the same breath, the counsel has tried to impress upon the Court that the complainant is not entitled to get any money back because the complainant had taken the cheque in advance as security for doing the contract work of the applicant and as there was a breach of the contract, therefore, the accused had a right to stop the payment in the Bank, resulting in the dishonour of the cheque. It is not difficult to read between the lines that the applicant accused had no intention to make payment good and the prejudice pleaded on the ground of non communication of notice is an unmerited defence. This Court has also had the occasion to go through another case's decision given by the another Bench of this Court in which the requirement of furnishing details about the service of the notice was also considered. Such an argument, as has been placed before me also did not find favour with the Court. Reference may be given to the decision in the Case of Vinay Patni (supra). In this case, virtually entire case law on the point has been thrashed and expatiated upon by the Court and all relevant Apex Court decisions as well as the decision by this Court have been considered. It was held by the Court that:
"....From the observations of the apex Court in the decisions noticed above, it is now clear that the complaint cannot be thrown out at the threshold even if it does not make a specific averment with regard to service of notice on the drawer on a given date. If the complaint and the documents in support thereof disclose that the notice has been served on the addressee in due course. The complaint, however, must contain basic facts regarding the mode and manner of the issuance of notice to the drawer of the cheque. "
At the risk of repetition, it may be stated that the service in due course has to be presumed, if the notice has been sent through registered post.
It was further held by the Court in the case of Vinay Patni (supra), whether the service was effected or not and what was its effect are the questions within the realm of the trial.
In the aforesaid peculiar facts and circumstance of the case and the law, as has been discussed, there does not appear any good ground to warrant any interference in the impugned order or the proceedings under challenge.
The application under section 482 Cr.P.C. is, accordingly, dismissed.
Order Date :- 2.12.2014 shailesh