Allahabad High Court
Mohd. Yahya Farooqui @ Firoz Farooqui vs State Of U.P. Thru ... on 26 March, 2021
Equivalent citations: AIRONLINE 2021 ALL 533
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Reserved
Court No. - 29
Case :- MISC. SINGLE No. - 7094 of 2021
Petitioner :- Mohd. Yahya Farooqui @ Firoz Farooqui
Respondent :- State Of U.P. Thru Prin.Secy.Secretariat Annexe & Ors.
Counsel for Petitioner :- Ashok Kumar Singh,Mohd. Isha Khan
Counsel for Respondent :- G.A., Sri Vimal Kumar, Km.Vishwa Mohini.
*****
Hon'ble Mohd. Faiz Alam Khan,J.
1. Heard Sri Ashok Kumar Singh along with Sri Mohd. Isa Khan, learned counsel for applicant, Sri Vimal Kumar and Km.Vishwa Mohini, learned counsel for opposite party nos.2 and 3 and Smt.Kiran Singh, learned Additional Goverment Advocate and perused the record.
2. By filing this petition, the petitioner has challenged the order dated 01.03.2021, passed by the Additional Sessions Judge, Court No.1, Lucknow in CNR No.UPLKO10135822020, Criminal Revision No.213/2020 (Mohd.Yahya Farooqui v. Asif Ali Ahmad Siddiqui and another) and the order dated 11.11.2020, passed by the Additional Court, Room No.5, Lucknow, under Section 143-A of Negotiable Instruments Act, 1881, P.S. Ghazipur, Distr4ict Lucknow, Complaint No.6964 of 2019 (Asif Ali Ahmad Siddiqui and another v. Mohd.Yahya Farooqui) and for quashing the whole proceedings of the above criminal case.
3. Petitioner (opposite party) Mohd.Yahya Farooqui @ Firoz Farooqui and complainant no.2 (opposite party no.3) are real brother and sister and Complainant no.3 is a class III Government Employee.
4. Brief facts giving rise to this litigation are that opposite party nos.2 and 3 had instituted a Complaint Case under Section 138 of Negotiable Instruments Act, 1881, against the petitioner alleging therein that in the year 2017-18, opposite party (petitioner) and his brother Javed Farooqui had taken a loan of Rs.12 lacs from complainant nos.1 and 2 on the condition that they will return Rs. 2 lacs with 10% interest by 31.03.2018 and on remaining 10 lacs they will pay Rs.5 lacs as interest by June 30, 2018. The aforesaid amount, according to the complainants, was paid in parts through RTGS and NEFT in petitioner's bank account. Thereafter Rs.3,55,000/- were stated to have been given to the petitioner by the complainants in the month of November, 2017 and complainant no.2 also stated to have given 18 Tolas of jewellary to the petitioner for the purpose of obtaining loan by mortgaging the same.
5. It is further stated in the complaint that a loan of Rs.6.25 lacs was taken by complainant no.1 as personal loan from the bank and he lended that amount also to the petitioner and his brother Javed Farooqui. As complainants/opposite party nos.2 and 3 had themselves came into financial crisis, they started demanding their money back from the petitioner and as a final settlement the petitioner and his brother Javed Farooqui provided a cheque bearing no.494041 dated 19.6.2019 of Rs. 30 lacs, drawn on Indian Overseas Bank to the complainants. The cheque was presented in State Bank of India, Indira Nagar Branch, Lucknow on 4.7.2019 and the same was dishonoured for the reason "payment stopped by drawer". A demand notice was stated to have been sent to the petitioner through Speed Post on 23.07.2019 and a copy of the same was also sent to the petitioner on his e-mail ID as well as on WhatsApp No.8800367938, however the notice was returned back unserved. When the demand was not made within 15 days i.e. till 7.8.2019, the complainants have filed this complainant and vide order dated 5.10.2019 the petitioner was summoned to face trial.
6. Petitioner appeared before the trial court and obtained bail. His statement under Section 251 Cr.P.C. was recorded on 3.2.2020 wherein the petitioner had denied to have given any cheque to the complainants in discharge of any financial liability, however he accepted that the cheque in question was bearing his signatures, however the same was missing.
7. During the course of trial, an application under Section 143A of Negotiable Instruments Act was moved by complainants and trial court by passing impugned order dated 11.11.2020 directed the petitioner to pay Rs. 6 lacs i.e. (20% of the cheque amount) within 60 days to the complainants. A revision was preferred against this order and the same was also dismissed by the revisional court vide impugned order dated 01.03.2021. Both these orders have been challenged by the petitioner by moving this petition.
8. Learned counsel for the petitioner while referring to the order of the trial court as well as of the revisional court submits that the complaint was filed on the basis of false and fabricated facts as no money was invested by the complainants either by cash, demand draft or by cheque and Rs.18,18,340/- were transferred in the bank account of the petitioner by the complainants for the purpose of investment in the business of brick kiln and the petitioner as per the agreed oral terms had returned about Rs.3,35,300/- to the complainants.
9. It is further submitted that in fact petitioner had lost his three cheques bearing nos.494041,494042 and 494043 and an application in this regard was submitted to the Manager, Indian Overseas Bank, Civil Lines, Allahabad on 26.04.2019 and he was also requested to stop the payment of these cheques. He further submits that on the same day i.e. 26.4.2019, the petitioner had also informed the Station House Officer, Shivkuti, Allahabad, informing that the above mentioned cheques, which were blank except his signatures, had gone missing. According to him the business of brick kiln failed and he came under financial constraints, however he had not taken any loan of Rs. 41 lacs from the complainants.
10. It is further submitted that as the cheques were not issued in discharge of any legally enforceable liability, the proceedings under Section 138 of Negotiable Instruments Act, are not maintainable as well as there is no relation of debtor and creditor between the complainants and the petitioner and mandatory provision of Section 251 Cr.P.C. has also not been complied by the trial court and no cause of action as required under Section 143 of Negotiable Instruments Act has occurred. Complainants are not the bearer of cheque no.494041, dated 19.6.2019 of the value of Rs. 30 lacs and also that the complaint has not been filed within one month after the passage of 15 days of giving notice as provided under Section 142 of the Negotiable Instruments Act. It is also submitted that service by Whats App or e-mail is not recognized under any law and the trial court as well as the revisional court has not considered the grounds put forth by the petitioner in right perspective and has passed the orders in utter disregard to the settled law and, therefore, both the orders passed by the trial court as well as the revisional court are liable to be set aside along with the complaint.
Learned counsel for petitioner has relied on following case laws :
(i) Sadanandan Bhadran vs. Madhavan Sunil Kumar
AIR 1998 SC 3043 (Para 10)
(ii) Yogendra Pratap Singh vs. Savitri Pandey and another
AIR 2015 SC 157 (Paras 31, 36 and 37)
(iii) Anvar P.V. Vs. P.K. Basheer and others
(2014) 10 SCC 473 (Para 14)
(iv) Securities and Exchange Board of India vs. Gaurav Varshney and others
(2016) 14 SCC 430 (Para 43)
(v) Bharat Barrel and Drum Manufacturing Company Vs. Amin Chand Pyarelal
(1999) 3 SCC 35 (Para 12)
(vi) Krishna Janardan Bhat vs. Duttatraya G. Hegde
AIR 2008 SC 1325 (Para 34)
11. Learned counsel for opposite party nos. 2 and 3 submits that once the cheque has been issued by the petitioner, there is a presumption under Section 139 of the Negotiable Instruments Act that the same has been issued in discharge of legally enforceable liability and, therefore, once the petitioner has admitted his signatures on the impugned cheques, he could not confront his liability to pay.
12. It is also submitted that the notice of demand was given as required under Section 138 of the Negotiable Instruments Act and within limitation the complaint was filed and therefore no illegality has been committed either by the trial court or by the revisional court as the petitioner had admitted his signatures on the cheques.
13. Learned counsel for opposite party nos.2 and 3 has relied on following case laws :
(i) Girish Kumar Suneja v. C.B.I. 2017 Cri.L.J.4980 (Paras 15,16,17 & 18)
(ii) Goli Satyanarayana Reddy v. G. Mahesh 2020 Cri.L.J. 1696 (Paras 19,20,21,22,23 and 24)
(iii) Mohit alias Sonu & Anr v. State of U.P. and Anr.
AIR 2013 SC 2248 (Para 17).
14. Having heard learned counsel parties and having perused the record, it is fruitful to have a glance on the relevant provisions of Negotiable Instruments Act, which appears necessary for the disposal of this petition.
Section 138 of Negotiable Instruments Act reads as under :
" Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that 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 that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for [a term which may be extended to two years'], or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless--
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice; in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice."
Section 142 of Negotiable Instruments Act reads as under :
"(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--
(a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;
(b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138:
[Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period;]
(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138.
(2) The offence under section 138 shall be inquired into and tried only by a court within whose local local jurisdiction,--
(a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or
(b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated.
15. Under Section 138 of the Act, where a cheque is issued by the drawer in the discharge of any debt or any other liability is returned by the bank unpaid, because the amount standing to the credit of that account is insufficient to honour the cheque,the said person is deemed to have committed an offence, subject to proviso to Section 138 which provides that the cheque should have been presented to the bank within the period of six months from the date of which it is drawn or within the period of its validity, whichever is earlier. The payee must also make a demand for the payment of the said amount by giving a notice in writing to the drawer of the cheque within 30 days of the receipt of the information by him from the bank regarding the return of the cheque unpaid. If despite this demand, the drawer fails to make the payment within fifteen days of the receipt of the notice, a cause of action arises for prosecuting him for the offence punishable under Section 138 of the Act. Section 142 provides that the court shall take cognizance of an offence punishable under Section 138 of the Act upon receipt of a complaint in writing made by the payee or, as the case may be, the holder in due course of the cheque. Such complaint must be made within one month of the date on which the cause of action arises under Clause (c) of the proviso to Section 138. However, discretion is given to the court to take cognizance of the complaint even after the prescribed period, if the complainant satisfies the court that he had sufficient cause for not making the complaint within such period.
16. It is not disputed that the drawer of the cheque makes himself liable for prosecution under Section 138 of the Act if he fails to make the payment within fifteen days of the receipt of the notice given by the drawee. His failure to make the payment within the stipulated period gives rise to a cause of action to the complainant to prosecute the drawer under Section 138 of the Act.
17. Perusal of record in the background of the submissions of learned counsel for parties would reveal that according to the avertments contained in the complaint the impugned cheque was presented by the complainants in their bank i.e. State Bank of India, Indira Nagar, Lucknow on 4.7.2019 and the same was dishonoured on 5.7.2019 . Notice of demand was issued on 23.07.2019 through registered post as well as through e-mail and Whats App, however the notice given through the registered post was received back unserved on 29.07.2019 and according to the complainants, the cause of action had accrued on 7.8.2019 and the complaint was filed on 17.8.2019.
18. Having regard to the conditions which are required to be fulfilled before summoning any person to face the trial with regard to Section 138 of the Negotiable Instruments Act, prima facie it appears that those requirements/conditions have apparently been fulfilled.
19. So far as the submissions of learned counsel for petitioner with regard to the non compliance of Section 251, Cr.P.C. is concerned, perusal of the record would reveal that the statement of the petitioner has been recorded by the trial court and sufficient information pertaining to the accusation, which has been leveled against the petitioner, has been communicated to him by the trial court and the petitioner has categorically replied that the signatures on the impugned cheque is of him, however the cheque had gone missing and the same had not been issued in discharge of any legally enforceable liability and also that he had not received any notice. This statement of the petitioner was recorded on 3.2.2020 and a copy of the same has been filed by the petitioner himself at page no.79 of the paper book of this petition, thefore, having regard to the substance of accusation which has been communicated to the petitioner by the trial court, in the considered opinion of this Court, sufficient compliance of Section 251, Cr.P.C. has been made and proper and sufficient opportunity to explain the accusation has been given to the petitioner by the trial court.
20. It is also submitted by Ld. Counsel for the petitioner that a Government Servant could not lend or invest any amount in any business. I need not to dwell deep in this submission for the reason that violation of any service conduct rules of any employment may be a relevant fact for initiating any disciplinary inquiry against the Government Servant but the same could not adversely effect his right to receive any legally enforceable amount or debt and therefore even if the money has been given by complainant no.2 to the petitioner in violation of any service conduct rules the same could not be a ground to quash the proceedings of instant case.
21. The another leg of submission of learned counsel for petitioner is with regard to the fact that the cheque was not issued in discharge of any legally enforceable liability and the same was missing. In this context, Section 139 of the Negotiable Instruments Act is relevant, which provides as under :
" It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138, for the discharge, in whole or in part, of any debt or other liability."
22. What is emerging from the material on record is that the signature of the accused on the said cheque are not disputed by the petitioner. The petitioner has also not disputed that there were transactions between the parties. Even as per the statement of the accused, which was recorded at the stage of 251 Cr.P.C. he has admitted that signatures on the impugned cheque was of him. Therefore, once the petitioner/accused has admitted that the cheque bears his signature, there is presumption that there exists a legally enforceable debt or liability under Section 139 of the N.I. Act. However, such a presumption is rebuttable in nature and the accused is required to lead the evidence to rebut such presumption.
23. In the case of K.N. Beena vs. Muniyappan, (2001) 8 SCC 458, it is observed that under Section 118 of the N.I. Act, unless the contrary is proved, it is to be presumed that the negotiable instruments (including a cheque) had been made or drawn for consideration. It is further observed and held that under Section 139, the Court has to presume, unless the contrary is proved, that the holder of the cheque received the cheque for discharge, in whole or in part, of a debt or liability. It is further observed that thus in complaints under Section 138, the Court has to presume that the cheque had been issued for a debt or liability. This presumption is rebuttable. However, the burden of proving that the cheque has not been issued for a debt or liability is on the accused.
24. In the case of Rangappa vs. Sri Mohan, (2010) 11 SCC 441 Hon'ble Supreme Court held as under :-
" Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant accused cannot be expected to discharge an unduly high standard or proof."
25. In Kisan Rao vs. Shankargouda, (2018) 8 SCC 165 after considering the decision of this Court in the case of Kumar Exports vs. Sharma Carpets, (2009) 2 SCC 513, it is observed by Hon'ble Supreme Court that the accused may adduce evidence to rebut the presumption, of section 139 of N I Act but mere denial regarding existence of debt shall not serve any purpose.
26. Coming back to the facts in the present case and considering that the petitioner has admitted his signatures on the cheque in question and that even according to the petitioner some amount was due and payable, there is a presumption under Section 139 of the N.I. Act that there exists a legally enforceable debt or liability. Of course such presumption is rebuttable in nature and the same could only be done by adducing evidence at trial but at this stage as the minute appreciation of evidence is not to be done complaint could not be quashed on this score. Therefore at this stage of trial complainants are entitled for the presumption as provided under Section 139 of N. I. Act.
27. Now I have to deal the submission of Ld. Counsel for the petitioner with regard to non service of the notice on him and also that consequently the complaint has been filed without accruing of cause of action.
28. It has been stated by the complainants in complaint that the cheque was presented in the Bank on 4.7.2019 and the same was dishonoured for the reason "payment stopped by drawer". A demand notice was sent to the petitioner through Speed Post on 23.07.2019 and a copy of the same was also sent to the petitioner on his e-mail ID as well as on his WhatsApp No.8800367938, however the notice sent by post was returned back unserved and when the demand was not made within 15 days i.e. till 7.8.2019, the complainants have filed this complainant.
29. Hon'ble Supreme Court in C.C. Alavi Haji Vs. Palapetty Muhammed and Ors., MANU/SC/2263/2007 held as under :-
"5. As noted hereinbefore, Section 138 of the Act was enacted to punish unscrupulous drawers of cheques who, though purport to discharge their liability by issuing cheque, have no intention of really doing so. Apart from civil liability, criminal liability is sought to be imposed by the said provision on such unscrupulous drawers of cheques. However, with a view to avert unnecessary prosecution of an honest drawer of the cheque and with a view to give an opportunity to him to make amends, the prosecution under Section 138 of the Act has been made subject to certain conditions. These conditions are stipulated in the proviso to Section 138 of the Act, extracted above. Under Clause (b) of the proviso, the payee or the holder of the cheque in due course is required to give a written notice to the drawer of the cheque within a period of thirty days from the date of receipt of information from the bank regarding the return of the cheque as unpaid. Under Clause (c), the drawer is given fifteen days time from the date of receipt of the notice to make the payment and only if he fails to make the payment, a complaint may be filed against him. As noted above, the object of the proviso is to avoid unnecessary hardship to an honest drawer. Therefore, the observance of stipulations in quoted Clause (b) and its aftermath in Clause (c) being a pre-condition for invoking Section 138 of the Act, giving a notice to the drawer before filing complaint under Section 138 of the Act is a mandatory requirement."
"14. Insofar as the question of disclosure of necessary particulars with regard to the issue of notice in terms of proviso (b) of Section 138 of the Act, in order to enable the Court to draw presumption or inference either under Section 27 of the G.C. Act or Section 114 of the Evidence Act, is concerned, there is no material difference between the two provisions. In our opinion therefore, when the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of Clause (b) of proviso to Section 138 of the Act stands complied with. It is needless to emphasis that the complaint must contain basic facts regarding the mode and manner of the issuance of notice to the drawer of the cheque. It is well settled that at the time of taking cognizance of the complaint under Section 138 of the Act, the Court is required to be prima facie satisfied that a case under the said Section is made out and the aforenoted mandatory statutory procedural requirements have been complied with. It is then for the drawer to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the cover was incorrect or that the letter was never tendered or that the report of the postman was incorrect. In our opinion, this interpretation of the provision would effectuate the object and purpose for which proviso to Section 138 was enacted, namely, to avoid unnecessary hardship to an honest drawer of a cheque and to provide him an opportunity to make amends.
15 . As noticed above, the entire purpose of requiring a notice is to give an opportunity to the drawer to pay the cheque amount within 15 days of service of notice and thereby free himself from the penal consequences of Section 138. In Vinod Shivappa (supra), this Court observed:
One can also conceive of cases where a well intentioned drawer may have inadvertently missed to make necessary arrangements for reasons beyond his control, even though he genuinely intended to honour the cheque drawn by him. The law treats such lapses induced by inadvertence or negligence to be pardonable, provided the drawer after notice makes amends and pays the amount within the prescribed period. It is for this reason that Clause (c) of proviso to Section 138 provides that the section shall not apply unless the drawer of the cheque fails to make the payment within 15 days of the receipt of the said notice. To repeat, the proviso is meant to protect honest drawers Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation, of the proviso would defeat the very object of the legislation. As observed in 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. whose cheques may have been dishonoured for the fault of others, or who may have genuinely wanted to fulfil their promise but on account of inadvertence or negligence failed to make necessary arrangements for the payment of the cheque. The proviso is not meant to protect unscrupulous drawers who never intended to honour the cheques issued by them, if being a part of their modus operandi to cheat unsuspecting persons.
16. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation, of the proviso would defeat the very object of the legislation. As observed in 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."
30. Hon'ble Supreme Court held in Ajeet Seeds Ltd. Vs. K. Gopala Krishnaiah, MANU/SC/0630/2014, has held as under :-
"10. It is thus clear that Section 114 of the Evidence Act enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. Section 27 of the GC Act gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. It is not necessary to 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.
11. Applying the above conclusions to the facts of this case, it must be held that the High Court clearly erred in quashing the complaint on the ground that there was no recital in the complaint that the notice Under Section 138 of the NI Act was served upon the accused. The High Court also erred in quashing the complaint on the ground that there was no proof either that the notice was served or it was returned unserved/unclaimed. That is a matter of evidence. We must mention that in C.C. Alavi Haji, this Court did not deviate from the view taken in Vinod Shivappa, but reiterated the view expressed therein with certain clarification. We have already quoted the relevant paragraphs from Vinod Shivappa where this Court has held that service of notice is a matter of evidence and proof and it would be premature at the stage of issuance of process to move the High Court for quashing of the proceeding Under Section 482 of the Code of Criminal Procedure........"
31. Hon'ble Supreme Court held in D. Vinod Shivappa Vs. Nanda Belliappa, MANU/SC/8187/2006 has held as under :-
"12. We cannot also lose sight of the fact that the drawer may by dubious means manage to get an incorrect endorsement made on the envelope that the premises has been found locked or that the addressee was not available at the time when postman went for delivery of the letter. It may be that the address is correct and even the addressee is available but a wrong endorsement is manipulated by the addressee. In such a case, if the facts are proved, it may amount to refusal of the notice. If the complainant is able to prove that the drawer of the cheque knew about the notice and deliberately evaded service and got a false endorsement made only to defeat the process of law, the Court shall presume service of notice. This, however, is a matter of evidence and proof. Thus even in a case where the notice is returned with the endorsement that the premises has always been found locked or the addressee was not available at the time of postal delivery, it will be open to the complainant to prove at the trial by evidence that the endorsement is not correct and that the addressee, namely the drawer of the cheque, with knowledge of the notice had deliberately avoided to receive notice. Therefore, it would be pre- mature at the stage of issuance of process, to move the High Court for quashing of the proceeding under Section 482 of the Code of Criminal Procedure. The question as to whether the service of notice has been fraudulently refused by unscrupulous means is a question of fact to be decided on the basis of evidence. In such a case the High Court oughtnot to exercise its jurisdiction under Section 482 of the Code of Criminal Procedure."
32. In view of above settled position of law, disputed facts pertaining to the issue and reciept of notice could not be decided in the proceedings under Section 482 Cr.P.C and the same has to be decided in the trial after the evidence has been led by the parties. Therefore in the light of above stated settled position of law the submission of Ld. Counsel for petitioner pertaining to non service of notice is premature and is also devoid of any force.
33. Learned Counsel for petitioner with regard to the order passed by the Courts below under section 143A Negotiable Instrument Act has not brought any other ground which may find favour of this Court.
Section 143A of the Negotiable Instruments Act, reads as under :
" (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the Court trying an offence under section 138 may order the drawer of the cheque to pay interim compensation to the complainant--
(a) in a summary trial or a summons case, where he pleads not guilty to the accusation made in the complaint; and
(b) in any other case, upon framing of charge.
(2) The interim compensation under sub-section (1) shall not exceed twenty per cent. of the amount of the cheque.
(3) The interim compensation shall be paid within sixty days from the date of the order under sub-section (1), or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the drawer of the cheque.
(4) If the drawer of the cheque is acquitted, the Court shall direct the complainant to repay to the drawer the amount of interim compensation, with interest at the bank rate as published by the Reserve Bank of India, prevalent at the beginning of the relevant financial year, within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the complainant..
(5) The interim compensation payable under this section may be recovered as if it were a fine under section 421 of the Code of Criminal Procedure, 1973 (2 of 1974).
(6) The amount of fine imposed under section 138 or the amount of compensation awarded under section 357 of the Code of Criminal Procedure, 1973 (2 of 1974), shall be reduced by the amount paid or recovered as interim compensation under this section."
34. In G.J. Raja Vs.Tejraj Surana reported in MANU/SC/1002/2019 Hon'ble supreme Court has held that " 9. A reading of Section 143A shows (i) interim compensation must not exceed 20% of the amount of the cheque; (ii) it must be paid within the time stipulated under Sub-Section (3); (iii) if the Accused is acquitted, the complainant shall be directed to pay to the Accused the amount of interim compensation with interest at the bank rate; (iv) the interim compensation payable under said Section can be recovered as if it were a fine Under Section 421 of the Code of Criminal Procedure, 1973 ('the Code', for short); and (v) if the Accused were to be convicted, the amount of fine to be imposed Under Section 138 of the Act or the amount of compensation to be awarded Under Section 357 of the Code would stand reduced by the amount paid or recovered as interim compensation.
18. The provisions contained in Section 143A have two dimensions. First, the Section creates a liability in that an Accused can be ordered to pay over upto 20% of the cheque amount to the complainant. Such an order can be passed while the complaint is not yet adjudicated upon and the guilt of the Accused has not yet been determined. Secondly, it makes available the machinery for recovery, as if the interim compensation were arrears of land revenue. Thus, it not only creates a new disability or an obligation but also exposes the Accused to coercive methods of recovery of such interim compensation through the machinery of the State as if the interim compensation represented arrears of land revenue. The coercive methods could also, as is evident from provision like Section 183 of the Maharashtra Land Revenue Code, in some cases result in arrest and detention of the Accused."
35. Having regard to the fact that the signatures of the petitioner on the cheque has been accepted by him and the cause of action has accrued after 01.09.2018 (the day from which Section 143A had come into effect) and at this stage minute scrutiny of the evidence is neither desirable nor required and also the ytrial Court while directing to pay amount under 143A N.I.Act has directed there appears no illegality in the orders of the Courts below. However the trial Court has not made any provision for securing the amount as in case of acquittal of the petitioner how the money received by him in compliance of the order of the trial court will be returned . Therefore the trial court is directed that if in compliance of its order dated 11.11.2020 the required amount is deposited or recovered from the petitioner the same will only be released in favour of opposite parties 2 and 3 on their furnishing adequate sureties, so that the amount remains secured.
36. I have very carefully perused the case laws relied by learned counsel for petitioner, however the petitioner due to factual difference is not able to take any benefit of the same.
37. In the final analysis and for the reasons aforementioned I do not find any merit in this petition. Thus the petition is dismissed.
38. However the trial court is directed that if in compliance of its order dated 11.11.2020 the desired amount is either deposited or recovered from the petitioner (Opposite Party) the same could only be released in favour of opposite parties No. 2 and 3 on their furnishing adequate sureties to the satisfaction of Court concerned.The trial court is directed to proceed with the complaint case and dispose the same in accordance with law, with expedition. Nothing stated above shall be construed as an expression of an opinion on the merit of the matters and the trial Court shall be free to come at its own conclusions having regard to the evidence adduced by the parties.
Order Date :- 26.03.2021 Irfan