સ્પીડ પોસ્ટ બજી જ ગયેલી કહેવાય તેનું કાયદાનું અનુમાન નું જજમેન્ટ

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

'AFR'
 
Judgment reserved on 10.10.2012
 
Judgment delivered on 19.10.2012
 

 
Case :- CRIMINAL REVISION No. - 3154 of 2012
 

 
Petitioner :- Vinay Patni
 
Respondent :- State Of U.P. & Another
 
Petitioner Counsel :- Ashish Agrawal
 
Respondent Counsel :- Govt. Advocate,R.P.Dwivedi
 

 
Hon'ble Manoj Misra,J.

1. I have heard Shri Ashish Agrawal for the revisionist, Shri R.P. Dwivedi for the complainant-opposite party No.2 and the learned A.G.A. for the State.

2. By this revision, the revisionist, who is an accused, has challenged the order dated 21.07.2012 passed by the Special Chief Judicial Magistrate, Agra in Complaint Case No. 220 of 2012, whereby the revisionist has been summoned under Section 138 of Negotiable Instruments Act (hereinafter referred to as ‘N.I. Act‘).

3. The complaint case is that the complainant lent a sum of Rs. 25,00,000/- to the revisionist vide pay order No. 172018 dated 17.06.2010, on State Bank of Indore, which was credited to the account of the revisionist. To return the aforesaid amount, the revisionist issued as many as eight cheques of different denominations, drawn on Vijaya Bank, Agra, totaling Rs.20,00,000/-, in favor of the complaint. Upon presentation for encashment, the cheques returned unpaid. Thereafter, the revisionist requested the complainant to present them for encashment in such a manner that not more than three cheques were presented at a time. Accordingly, on 19.03.2012, the complainant deposited three cheques, totaling Rs. 5 lacs, for collection through his account at State Bank of India. On 22.03.2012 the collecting bank returned the cheques to the complainant as having returned unpaid for insufficient funds in the drawer’s account. Consequently, on 26.3.2012, the complainant, through his counsel, sent a demand notice to the revisionist under registered cover with acknowledgment due, but no payment was made by the revisionist in spite of expiry of the period of notice. As a result the complaint was filed with the following documents: (i) dishonored cheques; (ii) bank intimation memos; (iii) copy of the demand notice; and (iv) postal receipt.

4. The order sheet of the court below reveals that the complaint was presented before the court on 18.04.2012 and, on 18.4.2012 itself, the court took cognizance and directed for recording of statement under Section 200 CrPC. Thereafter on the basis of the statement of the complainant, made on an affidavit, the court vide order dated 21.7.2012, upon finding a prima facie case against the revisionist, summoned the revisionist under Section 138 N.I. Act.

5. Learned counsel for the revisionist has assailed the summoning order on the following grounds:-

(a) that the complaint is completely silent with respect to service of notice of demand on the accused, as is mandatory under clauses (b) & (c) of the proviso to Section 138 N.I. Act, accordingly, no proceeding could be drawn on such a complaint;

(b) that, in the alternative, if it is presumed that the notice dispatched under registered cover would have been served in due course, then the presumption would be that it was served in 30 days from the date of dispatch and since the notice was dispatched on 26.03.2012, therefore, the complaint, which was presented on 18.04.2012, would be premature and as the court took cognizance on 18.4.2012 itself, the cognizance was taken when the offence was not complete, therefore, the subsequent issuance of process was illegal;

(c) that a single demand notice in respect of three separate cheques as well as a common complaint in respect of three separate offences was not legally maintainable and, as such, no proceeding could have been drawn thereupon; and

(d) that the statement of the complainant on an affidavit could not have been relied upon for issuing process inasmuch as there was no application on the part of the complainant to dispense with the requirement of examination in court as was required under sub-section (2) of Section 145 of the N.I. Act.

6. In support of the submission that without specific averment with regard to service of demand notice no proceeding could be drawn on the complaint, the learned counsel for the revisionist placed reliance on the decisions of the Apex Court in the cases of Shakti Travel & Tours v. State of Bihar & Anr. (2002) 9 SCC 415 and Harman Electronics (P) Ltd. and Anr. v. National Panasonic India Ltd. (2009) 1 SCC 720 as well as the decision of this Court in the case of Smt. Shobha Kulshreshtra V. State of UP 2008 (1) ACR 378. To support his contention that the presumption of service of notice can be drawn only on expiry of 30 days from the date of dispatch, the learned counsel for the revisionist laid much emphasis on the observations made by the Apex Court in the case of Subodh S. Salaskar v. Jayprakash M. Shah and Anr. (2008) 13 SCC 689, wherein the apex court observed that 30 days’ time ordinarily must be held to be sufficient for service of notice. Relying on the observations of the Apex court in the case of Subodh S. Salaskar (supra), the learned counsel for the revisionist contended that since the date of service of notice was not given in the complaint then for presuming service of notice, 30 days time should be counted from the date of dispatch and if such time is taken into account, then the complaint would be premature and the cognizance taken on a premature complaint, would render the proceedings illegal. In support of this contention, the learned counsel for the revisionist placed reliance on certain decisions of this court in the case of Smt. Mani Mittal v. State of U.P. and Ors. III (2004) BC 132 decided on 08.01.2004, as well as Anil Kumar Shukla v. State of U.P. and others 2008 CriLJ 2172: III (2008) BC 352 decided on 14.12.2007, wherein this court had quashed the proceedings under sections 138 N.I. Act on the ground that cognizance was taken on a premature complaint.

7. Per contra, the learned counsel for the complainant-opposite party No.2, relying on a three Judges decision of the Apex Court in the case of C.C. Alavi Haji v. Palapetty Muhammad and another (2007) 6 SCC 555, contended that it is not necessary to aver in the complaint that the notice was served on the accused on any given date. It has been contended that once it is averred in the complaint that the notice was dispatched under registered cover, which was speed-post in the instant case, on the address of the accused, which has not been stated to be incorrect, there would be a presumption in law with regard to service of notice, therefore, the complaint cannot be said to be not in conformity with the provisions of law merely because there is no specific averment with respect to the date of service of the notice of demand. In the alternative, it was contended that the question with regard to service of notice is a matter to be examined at the stage of trial, at this stage only a prima facie case is to be seen and the complaint cannot be thrown out at the threshold on the said ground. To support the above contention reliance was placed on a decision of the Apex Court in the case of V. Raja Kumari v. V.P. Subbarama Naidu reported in (2004) 8 SCC 744. Reliance was also placed on a decision of the Apex Court in K. Bhaskaran v. Shankaran Vaidhyan Balan reported in (1999) 7 SCC 510 so as to contend that the law would raise a presumption with regard to service of notice once the notice has been dispatched at a given address under registered cover. Further reliance was placed on a decision of the Apex Court in the case of Indo Automobiles v. Jai Durga Enterprises reported in (2008) 8 SCC 529, wherein the apex court relying on the decisions of K. Bhaskaran (supra) and V. Raja Kumari (supra) held that once notice has been sent by registered post with acknowledgment due to a correct address, it must be presumed that service has been made effective. With regard to the contention of the learned counsel for the revisionist that the complaint was premature, the learned counsel for the opposite party No.2 submitted that in the instant case, the notice was dispatched by registered speed post and since the addressor as well as the addressee resided in the same city, it would have hardly taken one or two days or maximum three days for service of notice on the addressee. Accordingly, since the complaint was filed after more than 23 days from the date of dispatch of the notice, it cannot be said that 15 days notice for payment was not given to the accused thus the complaint cannot be said to be premature on the date of its presentation. It was also submitted that in Subodh S. Salaskar’s case (supra), the Apex Court had given the outer time limit for deemed service of the notice. Further, in Salaskar’s case (supra), the Apex Court had also observed that where service of notice is sought to be effected by speed-post, ordinarily, the service takes place within a few days. In these circumstances, it was contended that the Subodh S. Salaskar’s case cannot be taken as an authority so as to hold that there should be a presumption that where the date of service of notice is not given in the complaint then notice must be deemed to have been served on expiry of 30 days from the date of dispatch. In the alternative, it was contended that the question with regard to the date of service of notice is a matter to be examined during the course of trial and on this basis the complaint cannot be thrown out at the threshold, particularly, in view of the decisions of the apex court in the case of C.C. Alavi Haji (supra), V. Raja Kumari (supra) and Indo Automobiles (supra).

8. In reply to the contention that a common complaint as well as a common demand notice with respect to three separate cheques was not maintainable, the learned counsel for the opposite party No.2 submitted that in the instant case, the cheques, which returned as unpaid, were all issued by the accused in favour of the complainant as part of the same transaction and were drawn on a common account of the accused and they were all presented on the same day for collection through a single account of the complainant and they returned unpaid on the same day, therefore, a single complaint as well as a common demand notice was legally maintainable. It was contended that the purpose of issuing a notice of demand is to give information to the drawer of the cheque with regards to the return of the cheques as unpaid so as to enable him to make good the payment of the cheque amount. The demand notice in the instant case gave a clear information to the drawer with respect to the dishonour of the cheques and specifically demanded for payment of the amounts payable under the cheques, therefore, the notice could not be said to be vitiated. It was also contended that since the demand notice was common with respect to the three cheques and all the three cheques having been presented on the same date and they returned unpaid also on the same date and were drawn on the same account and presented for collection through a common account, the cause of action for filing the complaint was one and, therefore, a single complaint cannot be said to be illegal in any manner. In the alternative, it was also submitted that since under Section 219 CrPC, it is permissible to hold a single trial for up to three offences committed by an accused of the same kind within the space of 12 months from the first of such offence, the complaint cannot be said to be illegal, even if it is assumed that three separate offences were committed by the accused.

9. As regards the contention of the learned counsel for the revisionist that the statement of the complainant could not have been accepted on an affidavit, the learned counsel for the opposite party No.2 submitted that under sub-section (1) of Section 145 N.I. Act, the statement of the complainant can be taken on an affidavit and for the said purpose, no special application is required. It was contended that the applicability of sub-section (2) of Section 145 N.I. Act comes into operation when an application is moved by the prosecution or the accused to examine any person giving evidence on an affidavit. Since in the instant case, the affidavit was given by the complainant under sub-section (1) of Section 145 N.I. Act, the affidavit was rightly taken into consideration for the purpose of issuing process. It has been contended that it would be open for the revisionist to apply for examination of the person giving the affidavit, by invoking the power, under sub-section (2) of Section 145 N.I. Act. In this regard reliance was also placed on certain observations made by the apex court in the case of Mandvi Co-operative Bank Ltd. v. Nimesh-B-Thakore (2010) 3 SCC 83.

10. Before examining the weight of the rival submissions it would be useful to first examine the scope of the enquiry which a Court of Magistrate is required to perform before issuance of process under Section 204 of the Code of Criminal Procedure. Sub-Section (1) of Section 204 of the Code provides that if in the opinion of a Magistrate, taking cognizance of an offence, there is sufficient ground for proceeding, then if the case appears to be a summons-case, he shall issue his summons for the attendance of the accused, or where the case appears to be a warrant-case, he may issue a warrant, or if he thinks fit, a summons, for causing to be brought or to appear at a certain time. The expression “in the opinion of a Magistrate…there is sufficient ground for proceeding” reflects that at the stage of issuance of process the Magistrate has to merely form an opinion as to the sufficiency of grounds for proceeding against the accused person. At that stage, what a Magistrate is called upon to see is whether there is sufficient ground for proceeding with the matter and not whether there is sufficient ground for conviction. The apex court in the case of Chief Enforcement Officer V. Videocon International Ltd. (2008) 2 SCC 492 held that the underlying object of the inquiry under Section 202 of the Code is to ascertain whether there is a prima facie case against the accused. It thus allows a Magistrate to form an opinion whether the process should or should not be issued. The scope of inquiry under Section 202 of the Code is extremely limited. At that stage, what a Magistrate is called upon to see is whether there is sufficient ground for proceeding with the matter and not whether there is sufficient ground for conviction of the accused. The above view of the apex court has been reiterated in Bhushan Kumar & another V. State (NCT of Delhi) & another (2012) 5 SCC 424 where the apex court held that at the stage of issuance of process, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. It further observed that whether the evidence is adequate for supporting the conviction can be determined only at the trial.

11. Thus, at the stage of summoning, the Court has only to see whether from the averments made in the complaint and the statement made in support thereof, a prima facie case has been made out against the accused for proceeding against him. From a reading of the provisions of Section 138 of the N.I. Act, in an action under Section 138 of the N.I. Act, the ingredients, which are to be satisfied for making out a case, are: (i) a person must have drawn a cheque on an account maintained by him for payment of a certain amount of money to another person from out of the account for the discharge of any debt or other liability; (ii) that cheque has been presented in the bank within a period of six months from the date on which it is drawn or within the period of its validity, which ever is earlier; (iii) that cheque is returned by the bank unpaid, either because the money standing to the credit of the 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 the bank; (iv) the payee or the holder in due course of the cheque makes a demand by giving a notice in writing to the drawer of the cheque, within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (v) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the notice.

12. Coming to the facts of the instant case, the complaint allegations, which were supported by an affidavit, prima facie, establish: (a) that three cheques, apart from other, of different denominations, totaling Rs.5,00,000/-, drawn on Vijaya Bank, Agra, were issued by the accused in favour of the complainant for return of the money lent by the complainant on 17.6.2010; (b) that these three cheques were presented for collection through State Bank of India on 19.03.2012; (c) that the cheques returned unpaid for insufficient funds in the account of the drawer and the information of which was received by the complainant on 22.03.2012 through the collecting bank; (d) that on 26.03.2012, the complainant, through his advocate, dispatched notice of demand under registered cover thereby demanding the payment of the amount payable under the three cheques within 15 days from the receipt of the notice; and (e) that the drawer failed to make the payment within the period provided by the notice. To substantiate the aforesaid facts the complainant enclosed: (a) original of the cheques that returned unpaid; (b) the returning memos provided by the Bank; (c ) copy of the notice of demand disclosing complete address of the drawer; and (d) postal receipt showing dispatch of notice on 26.3.2012 under registered speed post to the drawer.

13. What is, therefore, required to be seen is whether from the aforesaid material a prima facie case was made out for proceeding against the accused-revisionist. In that regard, the submission of the learned counsel for the revisionist is that in absence of a specific averment with regard to the service of notice of demand it cannot be said that a prima facie case was made out. To the contrary, the submission of the learned counsel for the complainant is that once it is alleged in the complaint that the notice of demand was sent under registered cover to the drawer, and the copy of the notice produced on record discloses the address of the accused, whereas the postal receipt on record discloses dispatch under registered speed post, a presumption, though rebuttable, would be raised that the notice reached its destination, under section 27 of the General Clauses Act as well as under illustration (f) to Section 114 of the Indian Evidence Act, 1872. With regards to the necessity of making averment in the complaint that the notice of demand was served on the drawer, the apex court in the case of C.C. Alavi Haji (supra), in paragraphs 14 and 15 of the judgment, observed as follows:

“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 a 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. …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 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 emphasize that the complainant 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 in 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.”

In the case of Indo Automobiles (supra), the apex court, after noticing the judgments in the cases of K. Bhaskaran (supra) as well as V. Raja Kumari (supra), observed: “It is also well settled that once notice has been sent by registered post with acknowledgment due to correct address, it must be presumed that the service has been made effective.”

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 was dispatched at the address of the drawer, then the law would raise a presumption, though rebuttable, 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.

14. Coming to the facts of the instant case, the complainant in his complaint has made the necessary averment with regard to the mode and manner of the issuance of notice. The copy of the notice disclosing the address of the drawer was on record and the postal receipt disclosed dispatch of notice by registered speed post to the drawer. Whether the notice was actually served or not is a matter to be examined at a later stage in the trial. The complaint averments further disclose that the notice of demand was dispatched within 30 days of receipt of information by the complainant regarding return of the cheques as unpaid. Therefore the contention of the learned counsel for the revisionist that the complaint was defective in absence of a specific averment with regard to service of notice is not acceptable inasmuch as in the complaint, the mode and manner of the issuance of notice has been given, which, coupled with the documents mentioned above, would raise a presumption, though rebuttable, that the notice has been served on the drawer. Accordingly the satisfaction of the court below with regards to existence of a prima facie case against the accused, to proceed against him under Section 138 of the N.I. Act, cannot be faulted on this ground.

15. To examine the weight of the second contention of the learned counsel for the revisionist that the complaint should be treated as premature, it would be useful to recapitulate the complaint averments. In the complaint, the date of dispatch of the notice is given as 26.03.2012. The complaint does not indicate the date of service of the notice. From the documents enclosed with the complaint it appears that the notice was dispatched under registered speed-post. There is no dispute that the addressee was also located within the district of dispatch. In the given circumstances, in view of the observations made in paragraph no.23 in Subodh S. Salaskar’s case (supra), it can be accepted, at this stage, that the notice must have reached the noticee within a few days, as it was dispatched under speed post. Since the complaint was filed after about 23 days from the date of dispatch of the notice, after excluding the 15 days period of notice, there would still remain a margin of about 7 clear days for the service of the notice. Accordingly, at this stage, the complaint cannot be thrown out as premature inasmuch as it is always open for the complainant to prove that the notice was served within those 7 days. The contention of the learned counsel for the revisionist that Subodh S. Salaskar’s case lays as a rule that where presumption of service is to be drawn then 30 days period should be taken as the time to effect service, cannot be accepted, inasmuch as in Subodh S. Salaskar’s case, the apex court was examining the outer time limit taken to effect service in a case of presumed service for the purpose of judging whether the complaint was barred by limitation. At the stage of issuance of process, it is not necessary for the court to record satisfaction that the evidence so led before it, is sufficient to record conviction. What is required for the court at the stage of issuance of process is to see whether a case has been made out for drawing proceeding against the accused (vide apex court’s decisions in Bhushan Kumar and another v. State (NCT of Delhi) and another (supra) and Chief Enforcement Officer v. Videocon International Ltd. (supra)).

16. In view of the discussion made above, I am of the view that, at this stage, the summoning order cannot be faulted on the ground that the complaint was premature, particularly, when the complaint was filed after 23 days of the date of issuance of notice. The decisions of this court which have been relied upon by the learned counsel for the revisionist are not applicable to the facts and circumstances of this case inasmuch as in those cases there was material before the court to come to a specific conclusion that cognizance was taken prior to expiry of 15 days from the date of service of the demand notice.

17. The third contention of the learned counsel for the revisionist that the demand notice as well as the complaint was illegal for combining three separate cause of actions cannot be accepted for the reason that though the three cheques might have been given separately to the complainant but all these cheques were drawn on the same account and, as per the complaint allegations, were in lieu of payment of a common loan amount. Further they were presented for collection on the same date through a single account, in the manner desired by the accused, and that the information of the cheques returning unpaid was also received on the same date; and a common notice of demand was also made. It was, therefore, one transaction and to state that there has to be separate complaint with respect to each cheque that was dishonoured, will not be correct in view of sub section (1) of Section 220 CrPC. Moreover, even if it is assumed that they constituted three separate offences, a common trial would not be hit by section 219 CrPC inasmuch as the number of offences did not exceed three. Thus, viewed from any angle, a common complaint as well as a common demand notice was not illegal. The view that I am taking is also supported by decisions of several High Courts, namely, the Madras High Court in the case of K. Govindraj v. Ashwin Barai reported in 1998 (94) Company Cases 236; the Punjab & Haryana High Court in the case of Anita V. Anil K. Mehra & others 1998(94) Company Cases 584; as well as the Andhra Pradesh High Court in the case of B. Venkat Narendra Prasad and another v. State of Andhra Pradesh reported in 2003 Cri.LJ 2506.

18. The last contention of the learned counsel for the revisionist that the complainant’s affidavit could not have been taken for consideration without the court’s permission is also not legally acceptable. Section 145 of the Negotiable Instruments Act reads as follows:-

” 145. Evidence on affidavit:- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code.

(2) The Court may, if it thinks fit, and shall, on the application of the prosecution of the accused, summon and examine any person giving evidence on affidavit as to the fact contained therein.”

19. A perusal of section 145 of the N.I. Act discloses that sub-sections (1) and (2) of Section 145 create two distinct and separate rights, former being in favour of the complainant and the latter being for the benefit of both, the complainant and the accused, besides the right of the court to summon and examine any person giving evidence on affidavit. The word ‘examine’ under Section 145 (2) thus would mean and include examination-in-chief, the cross-examination, re-examination and examination by the Judge. Sub-Section (1) of Section 145 relates to the complainant and it provides that the evidence of the complainant may be given by him on affidavit. For the applicability of sub-section (1), specific permission of the court is not required. It is no doubt open for the court to examine even the complainant in person in exercise of its power under sub-section (2) of Section 145 of the N.I. Act. It is thus not necessary for the complainant to seek for prior permission of the court before presenting his affidavit to support his complaint for consideration in an enquiry to form an opinion for issuance of process under Section 204 Cr.P.C.

20. For the reasons aforesaid, I do not find any illegality, impropriety or jurisdictional error in the order passed by the court below. The revision application is, accordingly, dismissed.

21. As a note of caution it is made clear that any opinion expressed by this Court in this judgment should not be taken as a finding so as to prejudice the trial of the accused. The reasoning recorded in this judgment is only for the limited purpose of upholding the validity of the summoning order.

Order Date :- 19.10.2012 Sunil Kr Tiwari