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Delhi District Court

Hon'Ble Supreme Court In C.C. Alavi Haji vs Palapetty Muhammed & Anr On 18 May, on 19 May, 2011

1 PETEX BUILDERS (PVT) LTD. (14 files) CC No.393/10 19­05­2011 Present:­ AR of the complainant along with Ld. counsel.

Accused no. 2, 3,6 & 7 along with Ld. counsel.

Accused no. 1 is represented by accused no.2.

Arguments had been heard on the application for permanent exemption moved on behalf of accused no. 6 & 7. The application is allowed to the limited extent of accused no. 6 & 7 shall be exempted from personal appearance till further orders subject to the necessary and fruitful participation of their Ld. counsel in the proceedings.

Arguments on an application U/s 145 (2) NI Act moved on behalf of the accused no. 2 have been heard. There are certain contradictions in respect of the defence taken by the accused in written statement viz a viz application filed U/s 145(2) NI Act. However, certain triable issues have been raised such as the suspicious circumstances of filing of the 14 complaints by the one attorney, most of the cheques are of same date, presentation of same date and same date of appointment of AR.

Ld. Counsel for the accused further raised a claim that the substantial amount was already paid to the complainant and undated cheques given for security has been misused.

Considering the entire facts and circumstances, the application is allowed. However, to the limited extent disclosed in the application itself. 2

Ld. counsel for the accused has also raised a contention that they have not received any legal demand notice. However, it appears from the record that postal receipts in respect of the legal demand notice and the acknowledgment card in respect of such notice are on record and has been exhibited at the time of pre­summoning evidence. Accused has not disputed the the correctness of address. In such circumstances I am of the considered opinion that accused cannot claim right to the cross­examination of the complainant on the point of the receiving the legal demand notice.

Hon'ble Supreme Court in C.C. Alavi Haji vs Palapetty Muhammed & Anr on 18 May, 2007 has held that:

"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 3 of the legislation. As observed in Bhaskarans 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.

18. In the instant case, the averment made in the complaint in this regard is: Though the complainant issued lawyers notice intimating the dishonour of cheque and demanded payment on 4.8.2001, the same was returned on 10.8.2001 saying that the accused was out of station. True, there was no averment to the effect that the notice was sent at the correct address of the drawer of the cheque by registered post acknowledgement due. But the returned envelope was annexed to the complaint and it thus, formed a part of the complaint which showed that the notice was sent by registered post acknowledgement due to the correct address and was returned with an endorsement that the addressee was abroad. We are of the view that on facts in hand the requirements of Section 138 of the Act had been sufficiently complied with and the decision of the High Court does not call for interference".

Complainant does not have any control over the postal authorities and receipts and acknowledgment cards are already on record; even in the present case the accused has only appeared after the issuance of Non Bailable Warrant and summons sent at the address of the accused person was received back with the refusal.

AR of the complainant can not be put in cross­examination for the points which are not in his control.

Even considering the facts and circumstances discussed in respect of summons and warrants issued against the accused and also considering the fact that even acknowledgment 4 card in respect of legal demand notice is on record and also in view of the above judgment of the Hon'ble Supreme Court, request of the accused has to be rejected. Request for cross­ examination on the point of the notice is rejected.

With these observations both the applications are disposed of. Be listed for cross­examination on 12.07.2011.

(RAKESH KUMAR SINGH) MM (NI Act)­Central­01/THC/ Delhi/ 19­05­011 5 PETEX BUILDERS (PVT) LTD. (14 files) CC No.389/10 19­05­2011 Present:­ AR of the complainant along with Ld. counsel.

Accused no. 2, 3,6 & 7 along with Ld. counsel.

Accused no. 1 is represented by accused no.2.

Arguments had been heard on the application for permanent exemption moved on behalf of accused no. 6 & 7. The application is allowed to the limited extent of accused no. 6 & 7 shall be exempted from personal appearance till further orders subject to the necessary and fruitful participation of their Ld. counsel in the proceedings.

Arguments on an application U/s 145 (2) NI Act moved on behalf of the accused no. 2 have been heard. There are certain contradictions in respect of the defence taken by the accused in written statement viz a viz application filed U/s 145(2) NI Act. However, certain triable issues have been raised such as the suspicious circumstances of filing of the 14 complaints by the one attorney, most of the cheques are of same date, presentation of same date and same date of appointment of AR.

Ld. Counsel for the accused further raised a claim that the substantial amount was already paid to the complainant and undated cheques given for security has been misused.

Considering the entire facts and circumstances, the application is allowed. However, to the limited extent disclosed in the application itself. 6

Ld. counsel for the accused has also raised a contention that they have not received any legal demand notice. However, it appears from the record that postal receipts in respect of the legal demand notice and the acknowledgment card in respect of such notice are on record and has been exhibited at the time of pre­summoning evidence. Accused has not disputed the the correctness of address. In such circumstances I am of the considered opinion that accused cannot claim right to the cross­examination of the complainant on the point of the receiving the legal demand notice.

Hon'ble Supreme Court in C.C. Alavi Haji vs Palapetty Muhammed & Anr on 18 May, 2007 has held that:

"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 7 of the legislation. As observed in Bhaskarans 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.

18. In the instant case, the averment made in the complaint in this regard is: Though the complainant issued lawyers notice intimating the dishonour of cheque and demanded payment on 4.8.2001, the same was returned on 10.8.2001 saying that the accused was out of station. True, there was no averment to the effect that the notice was sent at the correct address of the drawer of the cheque by registered post acknowledgement due. But the returned envelope was annexed to the complaint and it thus, formed a part of the complaint which showed that the notice was sent by registered post acknowledgement due to the correct address and was returned with an endorsement that the addressee was abroad. We are of the view that on facts in hand the requirements of Section 138 of the Act had been sufficiently complied with and the decision of the High Court does not call for interference".

Complainant does not have any control over the postal authorities and receipts and acknowledgment cards are already on record; even in the present case the accused has only appeared after the issuance of Non Bailable Warrant and summons sent at the address of the accused person was received back with the refusal.

AR of the complainant can not be put in cross­examination for the points which are not in his control.

Even considering the facts and circumstances discussed in respect of summons and warrants issued against the accused and also considering the fact that even acknowledgment 8 card in respect of legal demand notice is on record and also in view of the above judgment of the Hon'ble Supreme Court, request of the accused has to be rejected. Request for cross­ examination on the point of the notice is rejected.

With these observations both the applications are disposed of. Be listed for cross­examination on 12.07.2011.

(RAKESH KUMAR SINGH) MM (NI Act)­Central­01/THC/ Delhi/ 19­05­011 9 PETEX BUILDERS (PVT) LTD. (14 files) CC No.394/10 19­05­2011 Present:­ AR of the complainant along with Ld. counsel.

Accused no. 2, 3,6 & 7 along with Ld. counsel.

Accused no. 1 is represented by accused no.2.

Arguments had been heard on the application for permanent exemption moved on behalf of accused no. 6 & 7. The application is allowed to the limited extent of accused no. 6 & 7 shall be exempted from personal appearance till further orders subject to the necessary and fruitful participation of their Ld. counsel in the proceedings.

Arguments on an application U/s 145 (2) NI Act moved on behalf of the accused no. 2 have been heard. There are certain contradictions in respect of the defence taken by the accused in written statement viz a viz application filed U/s 145(2) NI Act. However, certain triable issues have been raised such as the suspicious circumstances of filing of the 14 complaints by the one attorney, most of the cheques are of same date, presentation of same date and same date of appointment of AR.

Ld. Counsel for the accused further raised a claim that the substantial amount was already paid to the complainant and undated cheques given for security has been misused.

Considering the entire facts and circumstances, the application is allowed. However, to the limited extent disclosed in the application itself. 10

Ld. counsel for the accused has also raised a contention that they have not received any legal demand notice. However, it appears from the record that postal receipts in respect of the legal demand notice and the acknowledgment card in respect of such notice are on record and has been exhibited at the time of pre­summoning evidence. Accused has not disputed the the correctness of address. In such circumstances I am of the considered opinion that accused cannot claim right to the cross­examination of the complainant on the point of the receiving the legal demand notice.

Hon'ble Supreme Court in C.C. Alavi Haji vs Palapetty Muhammed & Anr on 18 May, 2007 has held that:

"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 11 of the legislation. As observed in Bhaskarans 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.

18. In the instant case, the averment made in the complaint in this regard is: Though the complainant issued lawyers notice intimating the dishonour of cheque and demanded payment on 4.8.2001, the same was returned on 10.8.2001 saying that the accused was out of station. True, there was no averment to the effect that the notice was sent at the correct address of the drawer of the cheque by registered post acknowledgement due. But the returned envelope was annexed to the complaint and it thus, formed a part of the complaint which showed that the notice was sent by registered post acknowledgement due to the correct address and was returned with an endorsement that the addressee was abroad. We are of the view that on facts in hand the requirements of Section 138 of the Act had been sufficiently complied with and the decision of the High Court does not call for interference".

Complainant does not have any control over the postal authorities and receipts and acknowledgment cards are already on record; even in the present case the accused has only appeared after the issuance of Non Bailable Warrant and summons sent at the address of the accused person was received back with the refusal.

AR of the complainant can not be put in cross­examination for the points which are not in his control.

Even considering the facts and circumstances discussed in respect of summons and warrants issued against the accused and also considering the fact that even acknowledgment 12 card in respect of legal demand notice is on record and also in view of the above judgment of the Hon'ble Supreme Court, request of the accused has to be rejected. Request for cross­ examination on the point of the notice is rejected.

With these observations both the applications are disposed of. Be listed for cross­examination on 12.07.2011.

(RAKESH KUMAR SINGH) MM (NI Act)­Central­01/THC/ Delhi/ 19­05­011 13 PETEX BUILDERS (PVT) LTD. (14 files) CC No.391/10 19­05­2011 Present:­ AR of the complainant along with Ld. counsel.

Accused no. 2, 3,6 & 7 along with Ld. counsel.

Accused no. 1 is represented by accused no.2.

Arguments had been heard on the application for permanent exemption moved on behalf of accused no. 6 & 7. The application is allowed to the limited extent of accused no. 6 & 7 shall be exempted from personal appearance till further orders subject to the necessary and fruitful participation of their Ld. counsel in the proceedings.

Arguments on an application U/s 145 (2) NI Act moved on behalf of the accused no. 2 have been heard. There are certain contradictions in respect of the defence taken by the accused in written statement viz a viz application filed U/s 145(2) NI Act. However, certain triable issues have been raised such as the suspicious circumstances of filing of the 14 complaints by the one attorney, most of the cheques are of same date, presentation of same date and same date of appointment of AR.

Ld. Counsel for the accused further raised a claim that the substantial amount was already paid to the complainant and undated cheques given for security has been misused.

Considering the entire facts and circumstances, the application is allowed. However, to the limited extent disclosed in the application itself. 14

Ld. counsel for the accused has also raised a contention that they have not received any legal demand notice. However, it appears from the record that postal receipts in respect of the legal demand notice and the acknowledgment card in respect of such notice are on record and has been exhibited at the time of pre­summoning evidence. Accused has not disputed the the correctness of address. In such circumstances I am of the considered opinion that accused cannot claim right to the cross­examination of the complainant on the point of the receiving the legal demand notice.

Hon'ble Supreme Court in C.C. Alavi Haji vs Palapetty Muhammed & Anr on 18 May, 2007 has held that:

"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 15 of the legislation. As observed in Bhaskarans 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.

18. In the instant case, the averment made in the complaint in this regard is: Though the complainant issued lawyers notice intimating the dishonour of cheque and demanded payment on 4.8.2001, the same was returned on 10.8.2001 saying that the accused was out of station. True, there was no averment to the effect that the notice was sent at the correct address of the drawer of the cheque by registered post acknowledgement due. But the returned envelope was annexed to the complaint and it thus, formed a part of the complaint which showed that the notice was sent by registered post acknowledgement due to the correct address and was returned with an endorsement that the addressee was abroad. We are of the view that on facts in hand the requirements of Section 138 of the Act had been sufficiently complied with and the decision of the High Court does not call for interference".

Complainant does not have any control over the postal authorities and receipts and acknowledgment cards are already on record; even in the present case the accused has only appeared after the issuance of Non Bailable Warrant and summons sent at the address of the accused person was received back with the refusal.

AR of the complainant can not be put in cross­examination for the points which are not in his control.

Even considering the facts and circumstances discussed in respect of summons and warrants issued against the accused and also considering the fact that even acknowledgment 16 card in respect of legal demand notice is on record and also in view of the above judgment of the Hon'ble Supreme Court, request of the accused has to be rejected. Request for cross­ examination on the point of the notice is rejected.

With these observations both the applications are disposed of. Be listed for cross­examination on 12.07.2011.

(RAKESH KUMAR SINGH) MM (NI Act)­Central­01/THC/ Delhi/ 19­05­011 17 PETEX BUILDERS (PVT) LTD. (14 files) CC No.385/10 19­05­2011 Present:­ AR of the complainant along with Ld. counsel.

Accused no. 2, 3,6 & 7 along with Ld. counsel.

Accused no. 1 is represented by accused no.2.

Arguments had been heard on the application for permanent exemption moved on behalf of accused no. 6 & 7. The application is allowed to the limited extent of accused no. 6 & 7 shall be exempted from personal appearance till further orders subject to the necessary and fruitful participation of their Ld. counsel in the proceedings.

Arguments on an application U/s 145 (2) NI Act moved on behalf of the accused no. 2 have been heard. There are certain contradictions in respect of the defence taken by the accused in written statement viz a viz application filed U/s 145(2) NI Act. However, certain triable issues have been raised such as the suspicious circumstances of filing of the 14 complaints by the one attorney, most of the cheques are of same date, presentation of same date and same date of appointment of AR.

Ld. Counsel for the accused further raised a claim that the substantial amount was already paid to the complainant and undated cheques given for security has been misused.

Considering the entire facts and circumstances, the application is allowed. However, to the limited extent disclosed in the application itself. 18

Ld. counsel for the accused has also raised a contention that they have not received any legal demand notice. However, it appears from the record that postal receipts in respect of the legal demand notice and the acknowledgment card in respect of such notice are on record and has been exhibited at the time of pre­summoning evidence. Accused has not disputed the the correctness of address. In such circumstances I am of the considered opinion that accused cannot claim right to the cross­examination of the complainant on the point of the receiving the legal demand notice.

Hon'ble Supreme Court in C.C. Alavi Haji vs Palapetty Muhammed & Anr on 18 May, 2007 has held that:

"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 19 of the legislation. As observed in Bhaskarans 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.

18. In the instant case, the averment made in the complaint in this regard is: Though the complainant issued lawyers notice intimating the dishonour of cheque and demanded payment on 4.8.2001, the same was returned on 10.8.2001 saying that the accused was out of station. True, there was no averment to the effect that the notice was sent at the correct address of the drawer of the cheque by registered post acknowledgement due. But the returned envelope was annexed to the complaint and it thus, formed a part of the complaint which showed that the notice was sent by registered post acknowledgement due to the correct address and was returned with an endorsement that the addressee was abroad. We are of the view that on facts in hand the requirements of Section 138 of the Act had been sufficiently complied with and the decision of the High Court does not call for interference".

Complainant does not have any control over the postal authorities and receipts and acknowledgment cards are already on record; even in the present case the accused has only appeared after the issuance of Non Bailable Warrant and summons sent at the address of the accused person was received back with the refusal.

AR of the complainant can not be put in cross­examination for the points which are not in his control.

Even considering the facts and circumstances discussed in respect of summons and warrants issued against the accused and also considering the fact that even acknowledgment 20 card in respect of legal demand notice is on record and also in view of the above judgment of the Hon'ble Supreme Court, request of the accused has to be rejected. Request for cross­ examination on the point of the notice is rejected.

With these observations both the applications are disposed of. Be listed for cross­examination on 12.07.2011.

(RAKESH KUMAR SINGH) MM (NI Act)­Central­01/THC/ Delhi/ 19­05­011 21 PETEX BUILDERS (PVT) LTD. (14 files) CC No.395/10 19­05­2011 Present:­ AR of the complainant along with Ld. counsel.

Accused no. 2, 3,6 & 7 along with Ld. counsel.

Accused no. 1 is represented by accused no.2.

Arguments had been heard on the application for permanent exemption moved on behalf of accused no. 6 & 7. The application is allowed to the limited extent of accused no. 6 & 7 shall be exempted from personal appearance till further orders subject to the necessary and fruitful participation of their Ld. counsel in the proceedings.

Arguments on an application U/s 145 (2) NI Act moved on behalf of the accused no. 2 have been heard. There are certain contradictions in respect of the defence taken by the accused in written statement viz a viz application filed U/s 145(2) NI Act. However, certain triable issues have been raised such as the suspicious circumstances of filing of the 14 complaints by the one attorney, most of the cheques are of same date, presentation of same date and same date of appointment of AR.

Ld. Counsel for the accused further raised a claim that the substantial amount was already paid to the complainant and undated cheques given for security has been misused.

Considering the entire facts and circumstances, the application is allowed. However, to the limited extent disclosed in the application itself. 22

Ld. counsel for the accused has also raised a contention that they have not received any legal demand notice. However, it appears from the record that postal receipts in respect of the legal demand notice and the acknowledgment card in respect of such notice are on record and has been exhibited at the time of pre­summoning evidence. Accused has not disputed the the correctness of address. In such circumstances I am of the considered opinion that accused cannot claim right to the cross­examination of the complainant on the point of the receiving the legal demand notice.

Hon'ble Supreme Court in C.C. Alavi Haji vs Palapetty Muhammed & Anr on 18 May, 2007 has held that:

"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 23 of the legislation. As observed in Bhaskarans 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.

18. In the instant case, the averment made in the complaint in this regard is: Though the complainant issued lawyers notice intimating the dishonour of cheque and demanded payment on 4.8.2001, the same was returned on 10.8.2001 saying that the accused was out of station. True, there was no averment to the effect that the notice was sent at the correct address of the drawer of the cheque by registered post acknowledgement due. But the returned envelope was annexed to the complaint and it thus, formed a part of the complaint which showed that the notice was sent by registered post acknowledgement due to the correct address and was returned with an endorsement that the addressee was abroad. We are of the view that on facts in hand the requirements of Section 138 of the Act had been sufficiently complied with and the decision of the High Court does not call for interference".

Complainant does not have any control over the postal authorities and receipts and acknowledgment cards are already on record; even in the present case the accused has only appeared after the issuance of Non Bailable Warrant and summons sent at the address of the accused person was received back with the refusal.

AR of the complainant can not be put in cross­examination for the points which are not in his control.

Even considering the facts and circumstances discussed in respect of summons and warrants issued against the accused and also considering the fact that even acknowledgment 24 card in respect of legal demand notice is on record and also in view of the above judgment of the Hon'ble Supreme Court, request of the accused has to be rejected. Request for cross­ examination on the point of the notice is rejected.

With these observations both the applications are disposed of. Be listed for cross­examination on 12.07.2011.

(RAKESH KUMAR SINGH) MM (NI Act)­Central­01/THC/ Delhi/ 19­05­011 25 PETEX BUILDERS (PVT) LTD. (14 files) CC No.392/10 19­05­2011 Present:­ AR of the complainant along with Ld. counsel.

Accused no. 2, 3,6 & 7 along with Ld. counsel.

Accused no. 1 is represented by accused no.2.

Arguments had been heard on the application for permanent exemption moved on behalf of accused no. 6 & 7. The application is allowed to the limited extent of accused no. 6 & 7 shall be exempted from personal appearance till further orders subject to the necessary and fruitful participation of their Ld. counsel in the proceedings.

Arguments on an application U/s 145 (2) NI Act moved on behalf of the accused no. 2 have been heard. There are certain contradictions in respect of the defence taken by the accused in written statement viz a viz application filed U/s 145(2) NI Act. However, certain triable issues have been raised such as the suspicious circumstances of filing of the 14 complaints by the one attorney, most of the cheques are of same date, presentation of same date and same date of appointment of AR.

Ld. Counsel for the accused further raised a claim that the substantial amount was already paid to the complainant and undated cheques given for security has been misused.

Considering the entire facts and circumstances, the application is allowed. However, to the limited extent disclosed in the application itself. 26

Ld. counsel for the accused has also raised a contention that they have not received any legal demand notice. However, it appears from the record that postal receipts in respect of the legal demand notice and the acknowledgment card in respect of such notice are on record and has been exhibited at the time of pre­summoning evidence. Accused has not disputed the the correctness of address. In such circumstances I am of the considered opinion that accused cannot claim right to the cross­examination of the complainant on the point of the receiving the legal demand notice.

Hon'ble Supreme Court in C.C. Alavi Haji vs Palapetty Muhammed & Anr on 18 May, 2007 has held that:

"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 27 of the legislation. As observed in Bhaskarans 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.

18. In the instant case, the averment made in the complaint in this regard is: Though the complainant issued lawyers notice intimating the dishonour of cheque and demanded payment on 4.8.2001, the same was returned on 10.8.2001 saying that the accused was out of station. True, there was no averment to the effect that the notice was sent at the correct address of the drawer of the cheque by registered post acknowledgement due. But the returned envelope was annexed to the complaint and it thus, formed a part of the complaint which showed that the notice was sent by registered post acknowledgement due to the correct address and was returned with an endorsement that the addressee was abroad. We are of the view that on facts in hand the requirements of Section 138 of the Act had been sufficiently complied with and the decision of the High Court does not call for interference".

Complainant does not have any control over the postal authorities and receipts and acknowledgment cards are already on record; even in the present case the accused has only appeared after the issuance of Non Bailable Warrant and summons sent at the address of the accused person was received back with the refusal.

AR of the complainant can not be put in cross­examination for the points which are not in his control.

Even considering the facts and circumstances discussed in respect of summons and warrants issued against the accused and also considering the fact that even acknowledgment 28 card in respect of legal demand notice is on record and also in view of the above judgment of the Hon'ble Supreme Court, request of the accused has to be rejected. Request for cross­ examination on the point of the notice is rejected.

With these observations both the applications are disposed of. Be listed for cross­examination on 12.07.2011.

(RAKESH KUMAR SINGH) MM (NI Act)­Central­01/THC/ Delhi/ 19­05­011 29 PETEX BUILDERS (PVT) LTD. (14 files) CC No.382/10 19­05­2011 Present:­ AR of the complainant along with Ld. counsel.

Accused no. 2, 3,6 & 7 along with Ld. counsel.

Accused no. 1 is represented by accused no.2.

Arguments had been heard on the application for permanent exemption moved on behalf of accused no. 6 & 7. The application is allowed to the limited extent of accused no. 6 & 7 shall be exempted from personal appearance till further orders subject to the necessary and fruitful participation of their Ld. counsel in the proceedings.

Arguments on an application U/s 145 (2) NI Act moved on behalf of the accused no. 2 have been heard. There are certain contradictions in respect of the defence taken by the accused in written statement viz a viz application filed U/s 145(2) NI Act. However, certain triable issues have been raised such as the suspicious circumstances of filing of the 14 complaints by the one attorney, most of the cheques are of same date, presentation of same date and same date of appointment of AR.

Ld. Counsel for the accused further raised a claim that the substantial amount was already paid to the complainant and undated cheques given for security has been misused.

Considering the entire facts and circumstances, the application is allowed. However, to the limited extent disclosed in the application itself. 30

Ld. counsel for the accused has also raised a contention that they have not received any legal demand notice. However, it appears from the record that postal receipts in respect of the legal demand notice and the acknowledgment card in respect of such notice are on record and has been exhibited at the time of pre­summoning evidence. Accused has not disputed the the correctness of address. In such circumstances I am of the considered opinion that accused cannot claim right to the cross­examination of the complainant on the point of the receiving the legal demand notice.

Hon'ble Supreme Court in C.C. Alavi Haji vs Palapetty Muhammed & Anr on 18 May, 2007 has held that:

"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 31 of the legislation. As observed in Bhaskarans 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.

18. In the instant case, the averment made in the complaint in this regard is: Though the complainant issued lawyers notice intimating the dishonour of cheque and demanded payment on 4.8.2001, the same was returned on 10.8.2001 saying that the accused was out of station. True, there was no averment to the effect that the notice was sent at the correct address of the drawer of the cheque by registered post acknowledgement due. But the returned envelope was annexed to the complaint and it thus, formed a part of the complaint which showed that the notice was sent by registered post acknowledgement due to the correct address and was returned with an endorsement that the addressee was abroad. We are of the view that on facts in hand the requirements of Section 138 of the Act had been sufficiently complied with and the decision of the High Court does not call for interference".

Complainant does not have any control over the postal authorities and receipts and acknowledgment cards are already on record; even in the present case the accused has only appeared after the issuance of Non Bailable Warrant and summons sent at the address of the accused person was received back with the refusal.

AR of the complainant can not be put in cross­examination for the points which are not in his control.

Even considering the facts and circumstances discussed in respect of summons and warrants issued against the accused and also considering the fact that even acknowledgment 32 card in respect of legal demand notice is on record and also in view of the above judgment of the Hon'ble Supreme Court, request of the accused has to be rejected. Request for cross­ examination on the point of the notice is rejected.

With these observations both the applications are disposed of. Be listed for cross­examination on 12.07.2011.

(RAKESH KUMAR SINGH) MM (NI Act)­Central­01/THC/ Delhi/ 19­05­011 33 PETEX BUILDERS (PVT) LTD. (14 files) CC No.388/10 19­05­2011 Present:­ AR of the complainant along with Ld. counsel.

Accused no. 2, 3,6 & 7 along with Ld. counsel.

Accused no. 1 is represented by accused no.2.

Arguments had been heard on the application for permanent exemption moved on behalf of accused no. 6 & 7. The application is allowed to the limited extent of accused no. 6 & 7 shall be exempted from personal appearance till further orders subject to the necessary and fruitful participation of their Ld. counsel in the proceedings.

Arguments on an application U/s 145 (2) NI Act moved on behalf of the accused no. 2 have been heard. There are certain contradictions in respect of the defence taken by the accused in written statement viz a viz application filed U/s 145(2) NI Act. However, certain triable issues have been raised such as the suspicious circumstances of filing of the 14 complaints by the one attorney, most of the cheques are of same date, presentation of same date and same date of appointment of AR.

Ld. Counsel for the accused further raised a claim that the substantial amount was already paid to the complainant and undated cheques given for security has been misused.

Considering the entire facts and circumstances, the application is allowed. However, to the limited extent disclosed in the application itself. 34

Ld. counsel for the accused has also raised a contention that they have not received any legal demand notice. However, it appears from the record that postal receipts in respect of the legal demand notice and the acknowledgment card in respect of such notice are on record and has been exhibited at the time of pre­summoning evidence. Accused has not disputed the the correctness of address. In such circumstances I am of the considered opinion that accused cannot claim right to the cross­examination of the complainant on the point of the receiving the legal demand notice.

Hon'ble Supreme Court in C.C. Alavi Haji vs Palapetty Muhammed & Anr on 18 May, 2007 has held that:

"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 35 of the legislation. As observed in Bhaskarans 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.

18. In the instant case, the averment made in the complaint in this regard is: Though the complainant issued lawyers notice intimating the dishonour of cheque and demanded payment on 4.8.2001, the same was returned on 10.8.2001 saying that the accused was out of station. True, there was no averment to the effect that the notice was sent at the correct address of the drawer of the cheque by registered post acknowledgement due. But the returned envelope was annexed to the complaint and it thus, formed a part of the complaint which showed that the notice was sent by registered post acknowledgement due to the correct address and was returned with an endorsement that the addressee was abroad. We are of the view that on facts in hand the requirements of Section 138 of the Act had been sufficiently complied with and the decision of the High Court does not call for interference".

Complainant does not have any control over the postal authorities and receipts and acknowledgment cards are already on record; even in the present case the accused has only appeared after the issuance of Non Bailable Warrant and summons sent at the address of the accused person was received back with the refusal.

AR of the complainant can not be put in cross­examination for the points which are not in his control.

Even considering the facts and circumstances discussed in respect of summons and warrants issued against the accused and also considering the fact that even acknowledgment 36 card in respect of legal demand notice is on record and also in view of the above judgment of the Hon'ble Supreme Court, request of the accused has to be rejected. Request for cross­ examination on the point of the notice is rejected.

With these observations both the applications are disposed of. Be listed for cross­examination on 12.07.2011.

(RAKESH KUMAR SINGH) MM (NI Act)­Central­01/THC/ Delhi/ 19­05­011 37 PETEX BUILDERS (PVT) LTD. (14 files) CC No.386/10 19­05­2011 Present:­ AR of the complainant along with Ld. counsel.

Accused no. 2, 3,6 & 7 along with Ld. counsel.

Accused no. 1 is represented by accused no.2.

Arguments had been heard on the application for permanent exemption moved on behalf of accused no. 6 & 7. The application is allowed to the limited extent of accused no. 6 & 7 shall be exempted from personal appearance till further orders subject to the necessary and fruitful participation of their Ld. counsel in the proceedings.

Arguments on an application U/s 145 (2) NI Act moved on behalf of the accused no. 2 have been heard. There are certain contradictions in respect of the defence taken by the accused in written statement viz a viz application filed U/s 145(2) NI Act. However, certain triable issues have been raised such as the suspicious circumstances of filing of the 14 complaints by the one attorney, most of the cheques are of same date, presentation of same date and same date of appointment of AR.

Ld. Counsel for the accused further raised a claim that the substantial amount was already paid to the complainant and undated cheques given for security has been misused.

Considering the entire facts and circumstances, the application is allowed. However, to the limited extent disclosed in the application itself. 38

Ld. counsel for the accused has also raised a contention that they have not received any legal demand notice. However, it appears from the record that postal receipts in respect of the legal demand notice and the acknowledgment card in respect of such notice are on record and has been exhibited at the time of pre­summoning evidence. Accused has not disputed the the correctness of address. In such circumstances I am of the considered opinion that accused cannot claim right to the cross­examination of the complainant on the point of the receiving the legal demand notice.

Hon'ble Supreme Court in C.C. Alavi Haji vs Palapetty Muhammed & Anr on 18 May, 2007 has held that:

"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 39 of the legislation. As observed in Bhaskarans 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.

18. In the instant case, the averment made in the complaint in this regard is: Though the complainant issued lawyers notice intimating the dishonour of cheque and demanded payment on 4.8.2001, the same was returned on 10.8.2001 saying that the accused was out of station. True, there was no averment to the effect that the notice was sent at the correct address of the drawer of the cheque by registered post acknowledgement due. But the returned envelope was annexed to the complaint and it thus, formed a part of the complaint which showed that the notice was sent by registered post acknowledgement due to the correct address and was returned with an endorsement that the addressee was abroad. We are of the view that on facts in hand the requirements of Section 138 of the Act had been sufficiently complied with and the decision of the High Court does not call for interference".

Complainant does not have any control over the postal authorities and receipts and acknowledgment cards are already on record; even in the present case the accused has only appeared after the issuance of Non Bailable Warrant and summons sent at the address of the accused person was received back with the refusal.

AR of the complainant can not be put in cross­examination for the points which are not in his control.

Even considering the facts and circumstances discussed in respect of summons and warrants issued against the accused and also considering the fact that even acknowledgment 40 card in respect of legal demand notice is on record and also in view of the above judgment of the Hon'ble Supreme Court, request of the accused has to be rejected. Request for cross­ examination on the point of the notice is rejected.

With these observations both the applications are disposed of. Be listed for cross­examination on 12.07.2011.

(RAKESH KUMAR SINGH) MM (NI Act)­Central­01/THC/ Delhi/ 19­05­011 41 PETEX BUILDERS (PVT) LTD. (14 files) CC No.384/10 19­05­2011 Present:­ AR of the complainant along with Ld. counsel.

Accused no. 2, 3,6 & 7 along with Ld. counsel.

Accused no. 1 is represented by accused no.2.

Arguments had been heard on the application for permanent exemption moved on behalf of accused no. 6 & 7. The application is allowed to the limited extent of accused no. 6 & 7 shall be exempted from personal appearance till further orders subject to the necessary and fruitful participation of their Ld. counsel in the proceedings.

Arguments on an application U/s 145 (2) NI Act moved on behalf of the accused no. 2 have been heard. There are certain contradictions in respect of the defence taken by the accused in written statement viz a viz application filed U/s 145(2) NI Act. However, certain triable issues have been raised such as the suspicious circumstances of filing of the 14 complaints by the one attorney, most of the cheques are of same date, presentation of same date and same date of appointment of AR.

Ld. Counsel for the accused further raised a claim that the substantial amount was already paid to the complainant and undated cheques given for security has been misused.

Considering the entire facts and circumstances, the application is allowed. However, to the limited extent disclosed in the application itself. 42

Ld. counsel for the accused has also raised a contention that they have not received any legal demand notice. However, it appears from the record that postal receipts in respect of the legal demand notice and the acknowledgment card in respect of such notice are on record and has been exhibited at the time of pre­summoning evidence. Accused has not disputed the the correctness of address. In such circumstances I am of the considered opinion that accused cannot claim right to the cross­examination of the complainant on the point of the receiving the legal demand notice.

Hon'ble Supreme Court in C.C. Alavi Haji vs Palapetty Muhammed & Anr on 18 May, 2007 has held that:

"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 43 of the legislation. As observed in Bhaskarans 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.

18. In the instant case, the averment made in the complaint in this regard is: Though the complainant issued lawyers notice intimating the dishonour of cheque and demanded payment on 4.8.2001, the same was returned on 10.8.2001 saying that the accused was out of station. True, there was no averment to the effect that the notice was sent at the correct address of the drawer of the cheque by registered post acknowledgement due. But the returned envelope was annexed to the complaint and it thus, formed a part of the complaint which showed that the notice was sent by registered post acknowledgement due to the correct address and was returned with an endorsement that the addressee was abroad. We are of the view that on facts in hand the requirements of Section 138 of the Act had been sufficiently complied with and the decision of the High Court does not call for interference".

Complainant does not have any control over the postal authorities and receipts and acknowledgment cards are already on record; even in the present case the accused has only appeared after the issuance of Non Bailable Warrant and summons sent at the address of the accused person was received back with the refusal.

AR of the complainant can not be put in cross­examination for the points which are not in his control.

Even considering the facts and circumstances discussed in respect of summons and warrants issued against the accused and also considering the fact that even acknowledgment 44 card in respect of legal demand notice is on record and also in view of the above judgment of the Hon'ble Supreme Court, request of the accused has to be rejected. Request for cross­ examination on the point of the notice is rejected.

With these observations both the applications are disposed of. Be listed for cross­examination on 12.07.2011.

(RAKESH KUMAR SINGH) MM (NI Act)­Central­01/THC/ Delhi/ 19­05­011 45 PETEX BUILDERS (PVT) LTD. (14 files) CC No.383/10 19­05­2011 Present:­ AR of the complainant along with Ld. counsel.

Accused no. 2, 3,6 & 7 along with Ld. counsel.

Accused no. 1 is represented by accused no.2.

Arguments had been heard on the application for permanent exemption moved on behalf of accused no. 6 & 7. The application is allowed to the limited extent of accused no. 6 & 7 shall be exempted from personal appearance till further orders subject to the necessary and fruitful participation of their Ld. counsel in the proceedings.

Arguments on an application U/s 145 (2) NI Act moved on behalf of the accused no. 2 have been heard. There are certain contradictions in respect of the defence taken by the accused in written statement viz a viz application filed U/s 145(2) NI Act. However, certain triable issues have been raised such as the suspicious circumstances of filing of the 14 complaints by the one attorney, most of the cheques are of same date, presentation of same date and same date of appointment of AR.

Ld. Counsel for the accused further raised a claim that the substantial amount was already paid to the complainant and undated cheques given for security has been misused.

Considering the entire facts and circumstances, the application is allowed. However, to the limited extent disclosed in the application itself. 46

Ld. counsel for the accused has also raised a contention that they have not received any legal demand notice. However, it appears from the record that postal receipts in respect of the legal demand notice and the acknowledgment card in respect of such notice are on record and has been exhibited at the time of pre­summoning evidence. Accused has not disputed the the correctness of address. In such circumstances I am of the considered opinion that accused cannot claim right to the cross­examination of the complainant on the point of the receiving the legal demand notice.

Hon'ble Supreme Court in C.C. Alavi Haji vs Palapetty Muhammed & Anr on 18 May, 2007 has held that:

"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 47 of the legislation. As observed in Bhaskarans 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.

18. In the instant case, the averment made in the complaint in this regard is: Though the complainant issued lawyers notice intimating the dishonour of cheque and demanded payment on 4.8.2001, the same was returned on 10.8.2001 saying that the accused was out of station. True, there was no averment to the effect that the notice was sent at the correct address of the drawer of the cheque by registered post acknowledgement due. But the returned envelope was annexed to the complaint and it thus, formed a part of the complaint which showed that the notice was sent by registered post acknowledgement due to the correct address and was returned with an endorsement that the addressee was abroad. We are of the view that on facts in hand the requirements of Section 138 of the Act had been sufficiently complied with and the decision of the High Court does not call for interference".

Complainant does not have any control over the postal authorities and receipts and acknowledgment cards are already on record; even in the present case the accused has only appeared after the issuance of Non Bailable Warrant and summons sent at the address of the accused person was received back with the refusal.

AR of the complainant can not be put in cross­examination for the points which are not in his control.

Even considering the facts and circumstances discussed in respect of summons and warrants issued against the accused and also considering the fact that even acknowledgment 48 card in respect of legal demand notice is on record and also in view of the above judgment of the Hon'ble Supreme Court, request of the accused has to be rejected. Request for cross­ examination on the point of the notice is rejected.

With these observations both the applications are disposed of. Be listed for cross­examination on 12.07.2011.

(RAKESH KUMAR SINGH) MM (NI Act)­Central­01/THC/ Delhi/ 19­05­011 49 PETEX BUILDERS (PVT) LTD. (14 files) CC No.387/10 19­05­2011 Present:­ AR of the complainant along with Ld. counsel.

Accused no. 2, 3,6 & 7 along with Ld. counsel.

Accused no. 1 is represented by accused no.2.

Arguments had been heard on the application for permanent exemption moved on behalf of accused no. 6 & 7. The application is allowed to the limited extent of accused no. 6 & 7 shall be exempted from personal appearance till further orders subject to the necessary and fruitful participation of their Ld. counsel in the proceedings.

Arguments on an application U/s 145 (2) NI Act moved on behalf of the accused no. 2 have been heard. There are certain contradictions in respect of the defence taken by the accused in written statement viz a viz application filed U/s 145(2) NI Act. However, certain triable issues have been raised such as the suspicious circumstances of filing of the 14 complaints by the one attorney, most of the cheques are of same date, presentation of same date and same date of appointment of AR.

Ld. Counsel for the accused further raised a claim that the substantial amount was already paid to the complainant and undated cheques given for security has been misused.

Considering the entire facts and circumstances, the application is allowed. However, to the limited extent disclosed in the application itself. 50

Ld. counsel for the accused has also raised a contention that they have not received any legal demand notice. However, it appears from the record that postal receipts in respect of the legal demand notice and the acknowledgment card in respect of such notice are on record and has been exhibited at the time of pre­summoning evidence. Accused has not disputed the the correctness of address. In such circumstances I am of the considered opinion that accused cannot claim right to the cross­examination of the complainant on the point of the receiving the legal demand notice.

Hon'ble Supreme Court in C.C. Alavi Haji vs Palapetty Muhammed & Anr on 18 May, 2007 has held that:

"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 51 of the legislation. As observed in Bhaskarans 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.

18. In the instant case, the averment made in the complaint in this regard is: Though the complainant issued lawyers notice intimating the dishonour of cheque and demanded payment on 4.8.2001, the same was returned on 10.8.2001 saying that the accused was out of station. True, there was no averment to the effect that the notice was sent at the correct address of the drawer of the cheque by registered post acknowledgement due. But the returned envelope was annexed to the complaint and it thus, formed a part of the complaint which showed that the notice was sent by registered post acknowledgement due to the correct address and was returned with an endorsement that the addressee was abroad. We are of the view that on facts in hand the requirements of Section 138 of the Act had been sufficiently complied with and the decision of the High Court does not call for interference".

Complainant does not have any control over the postal authorities and receipts and acknowledgment cards are already on record; even in the present case the accused has only appeared after the issuance of Non Bailable Warrant and summons sent at the address of the accused person was received back with the refusal.

AR of the complainant can not be put in cross­examination for the points which are not in his control.

Even considering the facts and circumstances discussed in respect of summons and warrants issued against the accused and also considering the fact that even acknowledgment 52 card in respect of legal demand notice is on record and also in view of the above judgment of the Hon'ble Supreme Court, request of the accused has to be rejected. Request for cross­ examination on the point of the notice is rejected.

With these observations both the applications are disposed of. Be listed for cross­examination on 12.07.2011.

(RAKESH KUMAR SINGH) MM (NI Act)­Central­01/THC/ Delhi/ 19­05­011 53 PETEX BUILDERS (PVT) LTD. (14 files) CC No.390/10 19­05­2011 Present:­ AR of the complainant along with Ld. counsel.

Accused no. 2, 3,6 & 7 along with Ld. counsel.

Accused no. 1 is represented by accused no.2.

Arguments had been heard on the application for permanent exemption moved on behalf of accused no. 6 & 7. The application is allowed to the limited extent of accused no. 6 & 7 shall be exempted from personal appearance till further orders subject to the necessary and fruitful participation of their Ld. counsel in the proceedings.

Arguments on an application U/s 145 (2) NI Act moved on behalf of the accused no. 2 have been heard. There are certain contradictions in respect of the defence taken by the accused in written statement viz a viz application filed U/s 145(2) NI Act. However, certain triable issues have been raised such as the suspicious circumstances of filing of the 14 complaints by the one attorney, most of the cheques are of same date, presentation of same date and same date of appointment of AR.

Ld. Counsel for the accused further raised a claim that the substantial amount was already paid to the complainant and undated cheques given for security has been misused.

Considering the entire facts and circumstances, the application is allowed. However, to the limited extent disclosed in the application itself. 54

Ld. counsel for the accused has also raised a contention that they have not received any legal demand notice. However, it appears from the record that postal receipts in respect of the legal demand notice and the acknowledgment card in respect of such notice are on record and has been exhibited at the time of pre­summoning evidence. Accused has not disputed the the correctness of address. In such circumstances I am of the considered opinion that accused cannot claim right to the cross­examination of the complainant on the point of the receiving the legal demand notice.

Hon'ble Supreme Court in C.C. Alavi Haji vs Palapetty Muhammed & Anr on 18 May, 2007 has held that:

"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 55 of the legislation. As observed in Bhaskarans 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.

18. In the instant case, the averment made in the complaint in this regard is: Though the complainant issued lawyers notice intimating the dishonour of cheque and demanded payment on 4.8.2001, the same was returned on 10.8.2001 saying that the accused was out of station. True, there was no averment to the effect that the notice was sent at the correct address of the drawer of the cheque by registered post acknowledgement due. But the returned envelope was annexed to the complaint and it thus, formed a part of the complaint which showed that the notice was sent by registered post acknowledgement due to the correct address and was returned with an endorsement that the addressee was abroad. We are of the view that on facts in hand the requirements of Section 138 of the Act had been sufficiently complied with and the decision of the High Court does not call for interference".

Complainant does not have any control over the postal authorities and receipts and acknowledgment cards are already on record; even in the present case the accused has only appeared after the issuance of Non Bailable Warrant and summons sent at the address of the accused person was received back with the refusal.

AR of the complainant can not be put in cross­examination for the points which are not in his control.

Even considering the facts and circumstances discussed in respect of summons and warrants issued against the accused and also considering the fact that even acknowledgment 56 card in respect of legal demand notice is on record and also in view of the above judgment of the Hon'ble Supreme Court, request of the accused has to be rejected. Request for cross­ examination on the point of the notice is rejected.

With these observations both the applications are disposed of. Be listed for cross­examination on 12.07.2011.

(RAKESH KUMAR SINGH) MM (NI Act)­Central­01/THC/ Delhi/ 19­05­011