Delhi District Court
Smt. Veena Kathuria vs Sh. Mayur Soni on 24 November, 2015
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
CR No.42/15.
Unique Case ID No. 02405R0146192015.
Smt. Veena Kathuria
W/o Sh. Jugal Kishore,
A-10 Extn., D.K. Road,
Mohan Garden, Uttam Nagar,
New Delhi - 110 059. ........ Petitioner.
Vs.
Sh. Mayur Soni
S/o Dr. Prabhat Soni @ Prabhu Dayal Soni,
R/o Flat No.213, Ground Floor, Pocket-1, Phase-2,
Netaji Subhash Apartment, Sector-13,
Dwarka,
New Delhi. ......... Respondent.
Date of Institution : 14.10.2015.
U/s. 397 Cr.PC.
Date of reserving judgment/Order : 21.11.2015.
Date of pronouncement : 24.11.2015.
JUDGMENT
1. The present revision petition has been filed by the petitioner against the summoning order dated 30.6.2015 of the Ld. M.M. whereby she has been examined to face prosecution for the offence u/s.138 of the Negotiable Instrument Act.
2. It may be noted at the outset that the petitioner is the CR No.42/15. Page 1 of 7 mother in law of the respondent. It appears that the respondent has filed a complaint u/s.138 r/w section 142 of the Negotiable Instrument Act against the petitioner before the Trial Court. After taking on record presummoning evidence of the respondent, the Ld. M.M. found that there is sufficient material to proceed against the accused i.e. the petitioner herein and hence issued summons to her vide impugned order.
3. It was vehemently contended by the Ld. Counsel for the petitioner that the summoning order is bad in law as the essential ingredient of the offence u/s.138 of the Negotiable Instrument Act are not made out in this case. He has submitted that before any person can be summoned to face prosecution u/s. 138 of the Negotiable Instrument Act, the complainant has to satisfy that the legal notice in terms of section 138 (b) was in fact served upon the drawer of the cheque. He submits that in the present case, the statutory legal notice was not served upon the petitioner at all. He further submitted that the documents proved by the respondent himself during the presummoning evidence led before the Ld. M.M. shows that the legal notice Ex.CW1/C has been sent to the petitioner at the address A-10, D.K. Road, Mohan Garden, Uttam Nagar, New Delhi, whereas the respondent knows that the petitioner is residing at A-10 Extension, D.K. Road, Uttam Nagar, New Delhi. He submits that the respondent, being son in law of the petitioner, is well aware about the correct address of the petitioner but he deliberately sent the legal notice upon a different address, as a result of which same has been returned back with the remark of the postman "no such person resides there". According to him, the two houses bearing house nos.A-10 and CR No.42/15. Page 2 of 7 A-10 Extension are situated in different blocks and hence apart from each other by hundreds of yards. The Ld. Counsel argued that hence it cannot be said that the statutory notice has been served upon the petitioner and therefore, the complaint filed by the respondent was not maintainable. According to him, the impugned order cannot be sustained and is liable to be set aside. He also place reliance upon the judgment of the High Court reported as HDFC Bank Ltd. vs. Amit Kumar Singh, 2010 STPL (DC) page 635 DEL.
4. Per Contra, Ld. Counsel for the respondent argued that there is no error or infirmity in the impugned order. He argued that whether the statutory notice was sent at the correct address of the petitioner where she resides or at an incorrect address is a factual issue which can be determined only after the trial of the case. He submitted that it would be premature to say at this stage that the statutory notice was not served upon the petitioner and therefore the revision petition is liable to be dismissed. He placed reliance upon a judgment of the Supreme Court reported as D. Vinod Shivappa vs. Nanda Belliappa, 2006(2) Bank CLR 429 (SC) in order to buttress his submission.
5. Perusal of the Trial Court record shows that the statutory period notice Ex.PW1/C has been sent to the petitioner at the address A-10, D.K. Road, Mohan Garden, Uttam Nagar, New Delhi. Same address has been shown in the memo of parties also in the complaint. The petitioner has annexed photocopy of various documents such as police complaints, passport, ration card etc. alongwith revision petition which show that she resides at A-10 CR No.42/15. Page 3 of 7 Extension, D.K. Road, Mohan Garden, Uttam Nagar, New Delhi. It was submitted by the Ld. Counsel for the petitioner that the house no.A-10 and A-10 Extension, D.K. Road, Mohan Garden, Uttam Nagar, New Delhi, are not situated adjacent to each other but at a considerable distance from each other and therefore, it is apparent at this stage itself that the notice has been sent at an incorrect address deliberately so as to prevent the petitioner from sending her response to the same.
6. The Ld. Counsel for the petitioner placed heavy reliance upon paragraph no.30 of the judgment of the High Court in HDFC Bank Ltd. case (supra), which is reproduced hereunder:
"30. To recapitulate, a complainant in a case under Section 138 N.I. Act has at the pre-summoning stage to satisfy the learned M.M. that the legal notice in terms of the Section 138 (b) N.I. Act was in fact "served" on the drawer of the dishonored cheque. If some proof of delivery, or an internet generated or postal delivery report or a signed acknowledgment due card of the drawer, or the unserved cover with the postal endorsement is produced before the learned M.M., it will be in the discretion of the learned M.M. to form an opinion if a presumption of service should be drawn. If the complainant chooses to file an affidavit, the deponent should state that he both went personally and found that the accused was residing at the address or is able to produce some postal certificate or an endorsement by a courier service agency that the accused is in fact residing at the address and yet refusing to accept the notice. If the affidavit merely states that the accused is residing at the address without giving any further documentary proof in support thereof such an affidavit cannot be accepted as satisfying the requirement of Section 138(b) read with Section 138(c) of the N.I. Act."CR No.42/15. Page 4 of 7
7. It is the complainant's own case that the statutory notice Ex.PW1/C sent by him to the petitioner was received back by him with endorsement of the postman "no such person resides there". He has mentioned in para 8 of the complaint as well as in para 8 of the affidavit in the nature of presummoning evidence Ex.PW1/1 that the petitioner is very much staying at the given address and has managed a false and wrong endorsement/postal remark in connivance with the postal staff and got the legal demand notice returned. He has nowhere averred that he has been visiting the petitioner at the address A-10, D.K. Road, Mohan Garden, Uttam Nagar, New Delhi, and found the petitioner always residing there. He has not filed any document alongwith the complaint or alongwith the affidavit Ex.PW1/1 to show that the petitioner resides at the address A-10, D.K. Road, Mohan Garden, Uttam Nagar, New Delhi. On the other hand, the documents including the passport, ration card, etc. filed by the petitioner alongwith revision petition clearly show that her residential address is A-10 Extension, D.K. Road, Mohan Garden, Uttam Nagar, New Delhi. The complainant has also nowhere mentioned in what capacity is the petitioner residing in A-10, D.K. Road, Mohan Garden, Uttam Nagar, New Delhi.
8. It is not the case of the complainant that the address of the petitioner has been mentioned incorrectly upon the statutory notice and in the complaint before the Trial Court due to some inadvertent typographical mistake. No such argument was put forth by his Counsel before this court. Therefore, if the complainant i.e. the respondent herein is certain that the petitioner resides at A-10, D.K. Road and not at A-10 Extension, CR No.42/15. Page 5 of 7 D.K. Road, it was incumbent for him to either file any documentary evidence in this regard or to submit an affidavit in this regard in terms of para 30 of the HDFC Bank Ltd. judgment. He has done neither.
9. The Ld. Counsel for the respondent/complainant even did not dispute during the course of arguments that the house nos.A-10, D.K. Road and A-10 Extension, D.K. Road, are situated in different areas at a distance from each other and are not adjacent to each other. Hence it is not discernible as to why the respondent sent the statutory notice to the petitioner at A-10, D.K. Road address. After all, he is the son in law of the petitioner and thus expected to be aware about the correct address of the petitioner. It, therefore, appears that the statutory notice has been sent deliberately at an incorrect address of the petitioner so as to prevent her from receiving the same and from putting forth her response to the same.
10. I am of the opinion that, in this case, it cannot be said that the legal notice in terms of section 138(b) of the Negotiable Instrument Act has, in fact, been served upon the drawer of the dishonored cheques i.e. petitioner herein. The said notice has been intentionally sent to an incorrect address and has been rightly returned by the postal authorities with remark "no such person resides there". Therefore, one of the essential ingredients of the offence u/s.138 of the Negotiable Instrument Act is clearly missing in this case and the same appears to have escaped the attention of the Ld. M.M. CR No.42/15. Page 6 of 7
11. I may note here that the judgment of the Supreme Court cited by the Ld. Counsel for the respondent has no application to the present case for the reason that the legal notice u/s.138(b) of the Negotiable Instrument Act, in that case, had been returned unserved with the endorsement "party not in station, arrival not known", which is not the case here.
12. Therefore, the impugned summoning order is not sustainable. The same is hereby set aside.
13. Resultantly, the complaint filed by the respondent before the Trial Court stands dismissed.
14. Revision file be consigned to Record Room. Trial Court record be sent back alongwith copy of today's order.
Announced in open (VIRENDER BHAT)
Court on 24.11.2015. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
CR No.42/15. Page 7 of 7