Court No. - 15
Case :- APPLICATION U/S 482 No. - 24896 of 2018 Applicant :- Parvindar Kumar Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Vikrant Rana Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Vikrant Rana, learned counsel for the applicant, Sri Prashan Kumar, learned A.G.A. appearing for the State and perused the record.
This application under Section 482 Cr.P.C has been moved with a prayer to quash the criminal proceedings of Complaint Case No.2189 of 2017 (Ravi Harvinder Singh vs. Parvindar Kumar) under section 138 Negotiable Instruments Act pending in the court of Additional Civil Judge (Sr. Division), Court No. 2, Ghaziabad and also a prayer is made to stay the proceedings in this case till the disposal of this application.
It is contended by the learned counsel for the applicant that the opposite party no. 2 and accused-applicant are business partners having firm by the name of M/s. A.V. Engineer Works. The firms is not made party in this case. The com,plaint case is time barred by two days. He further submits that the cheque in question was issued on 17.2.2017 and the same got bounced on 21.2.2017 and thereafter notice was issued to the accused-applicant on 23.7.2017 and complaint has been filed on 11.4.2017. He has further stated that the complaint ought to have been filed by 9.4.2017 as the same is required to be filed within 45 days from the date of issuance of notice, hence the complaint proceedings need to be quashed.
Learned counsel for the applicant has relied upon the judgment of the Supreme Court rendered in the case of Subodh S. Salaskar vs. Jayprakash M. Shah and another (2008) 13 SCC 689. The relevant paragraph nos 22, 23, 24, 25 and 26 are quoted herein below:-
"22. In terms of the provisions of the General Clauses Act, a notice must be deemed to have been served in the ordinary course subject to the fulfillment of the conditions laid down therein. Section 27 of the General Clauses Act reads as under:
"27. Meaning of service by post.--Where any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression `serve' or either of the expression `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."
23. Thirty days' time ordinarily must be held to be sufficient for service of notice. In fact when the service of notice is sought to be effected by Speed Post, ordinarily the service takes place within a few days. Even under Order V, Rule 9(5) of the Code of Civil Procedure, 1908, summons is presumed to be served if it does not come back within thirty days. In a situation of this nature, there was no occasion for the Court to hold that service of notice could not be effected within a period of thirty days.
24. Presumption of service, under the statute, would arise not only when it is sent by registered post in terms of Section 27 of the General Clauses Act but such a presumption may be raised also under Section 114 of the Evidence Act. Even when a notice is received back with an endorsement that the party has refused to accept, still then a presumption can be raised as regards the valid service of notice. Such a notice, as has been held by a Three-Judge Bench of this Court in C.C. Alavi Haji v. Palapetty Muhammed and Another [(2007) 6 SCC 555] should be construed liberally, stating :
"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. As observed in Bhaskaran case 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."
[Emphasis supplied]
25. The complaint petition admittedly was filed on 20.04.2001. The notice having been sent on 17.01.2001, if the presumption of service of notice within a reasonable time is raised, it should be deemed to have been served at best within a period of thirty days from the date of issuance thereof, i.e., 16.02.2001. The accused was required to make payment in terms of the said notice within fifteen days thereafter, i.e., on or about 2.03.2001. The complaint petition, therefore, should have been filed by 2.04.2001.
26. Ex facie, it was barred by limitation. No application for condonation of delay was filed. No application for condonation of delay was otherwise maintainable. The provisions of the Act being special in nature, in terms thereof the jurisdiction of the court to take cognizance of an offence under Section 138 of the Act was limited to the period of thirty days in terms of the proviso appended thereto. The Parliament only with a view to obviate the aforementioned difficulties on the part of the complainant inserted proviso to Clause (b) of Section 142 of the Act in 2002. It confers a jurisdiction upon the court to condone the delay. It is, therefore, a substantive provision and not a procedural one. The matter might have been different if the Magistrate could have exercised its jurisdiction either under Section 5 of the Limitation Act, 1963 or Section 473 of the Code of Criminal Procedure, 1976. The provisions of the said Acts are not applicable. In any event, no such application for condonation of delay was filed. If the proviso appended to Clause (b) of Section 142 of the Act contained a substantive provision and not a procedural one, it could not have been given a retrospective effect. A substantive law, as it is well-settled, in absence of an express provision, cannot be given a retrospective effect or retroactive operation."
Learned A.G.A. has vehemently opposed the prayer for quashing of the complaint.
The trial court has observed in the impugned order that the cheque in question was issued on 17.2.2017 by the accused-applicant in favour of the opposite party no. 2 which got bounced due to insufficient funds in the account of accused on 21.2.2017 and thereafter he apprised about the same to the accused-applicant regarding making the payment that he refused to make payment. The applicant got himself examined under section 200 Cr.P.C. along with documentary evidence in support of the averments. On the basis of which the impugned summoning order has been passed.
The above ruling is on the point of holding the service of notice sufficient, which can be applicable only in the light of evidence to be led by the parties and not at this stage.
Whether the complaint has been filed with the delay of two days would require evidence to be led from the side of the complaint as well as the opposite party no. 2, thereafter the case being time barred can be decided only on the basis of evidence led by the parties. Moreover, the other argument which has been raised pertains to the matter of fact of the case which would also require evidence to be led by both sides and thereafter only finding may be given by the court below From the perusal of material on record and looking into the facts of this case, at this stage, it cannot be said that no offence is made out against the applicant. All the submissions made at the Bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court in proceedings u/s 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of law laid down by Hon'ble Supreme Court in cases of R. P. Kapur vs. The State Of Punjab, AIR 1960 SC 866, State of Haryana and others Vs. Ch. Bhajan Lal and others, AIR 1992 SC 604 and State of Bihar and Anr. Vs. P.P. Sharma, AIR 1991 SC 1260 lastly Zandu Pharmaceutical Works Ltd. and Ors. Vs. Md. Sharaful Haque and Ors., AIR 2005 SC 9. The disputed defense of the accused cannot be considered at this stage.
The application under section 482 Cr.P.C. is accordingly rejected.
Order Date :- 6.9.2018 AU