Manipur High Court
Prateek Agarwal vs Sharmila Goyanka on 21 February, 2022
Author: Sanjay Kumar
Bench: Sanjay Kumar
Digitally signed
LAIRENM by (Through video conferencing)
LAIRENMAYUM
AYUM INDRAJEET
INDRAJE SINGH
Date: IN THE HIGH COURT OF MANIPUR
ET SINGH 2022.02.21
15:53:06 +05'30' AT IMPHAL
CRIMINAL PETITION NO. 39 OF 2021
Prateek Agarwal, aged about 37 years,
s/o Shri Rajendra Agarwal, a resident of S-206,
Panchsheel Park, New Delhi-110017.
....... Petitioner
- Versus -
1. Sharmila Goyanka, aged about 45 years,
w/o Mr. Manish Kumar Goyanka, a resident of H-348,
First Floor, H-Block, Naraina Vihar, New Delhi-110028 and
2. Shri Khomdram Devabarta Singh, aged about 41 years,
s/o Khomdram Lokeshore Singh, R/O Haobam Marak
Ngangom Leikai, Imphal West, Manipur-795001.
..... Respondents
For the Petitioner :: Mr. Th.Mahira, Advocate
For the Respondents :: Mr. Mangsatabam Rarry, Advocate
Date of reserving of Judgment :: 08.02.2022
Date of delivery of Judgment :: 21.02.2022
BEFORE
HON'BLE THE CHIEF JUSTICE MR. SANJAY KUMAR
JUDGMENT
Chapter XVII of the Negotiable Instruments Act, 1881, was inserted therein by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 (Act 66 of 1988), with effect from 01.04.1989. Thereby, the Parliament converted civil liability vis-à-vis causing deliberate dishonour of one's own cheques into a culpable offence with the intendment of enhancing acceptability of cheques. Section 138, in this chapter, Cril.Petn. No.39 of 2021 Page 1 details dishonour of a cheque for insufficiency of funds in the account etc. as an offence and prescribes the punishment therefor in the form of imprisonment or fine or both. Sections 139 to 147, as they presently stand, are machinery provisions dealing with various aspects, including the manner and method of how cognizance is to be taken of this offence.
While so, akin to the Lernaean Hydra of Herculean lore, tricky questions of procedure and jurisdiction in relation to this offence continue to raise their troublesome heads before the Courts despite the lapse of over three decades. The case on hand is an instance.
[2] By way of this petition filed under Section 482 Cr.P.C., the petitioner seeks quashing of Criminal (N.I.) Case No.12 of 2021 filed against him before the learned Chief Judicial Magistrate, Imphal West, along with the orders dated 09.02.2021 and 04.03.2021 passed therein, whereby process was issued against him. The said complaint case was filed by respondent No.1 through respondent No.2, her power of attorney holder, under Sections 138 and 141 of the Negotiable Instruments Act, 1881 (hereinafter, 'the Act of 1881'). The case of the complainant was that the respondent therein, the petitioner in this criminal petition, had issued in her name cheque bearing No.000156 dated 04.03.2020, drawn on RBL Bank at New Delhi, for a sum of `5 lakh but when she deposited the said cheque at the Yes Bank Branch at Naraina Vihar in New Delhi for being credited to her bank account bearing No.05499300000605 in the Yes Bank Branch at Thangal Bazar, Imphal, it was dishonoured on the ground of 'insufficient funds'. The complainant stated that Demand Notices dated 16.03.2020 were sent to the petitioner herein at both his known addresses, one at S-206, Panchasheel Park, New Delhi, and the other at Farm No.16, Defodil Cril.Petn. No.39 of 2021 Page 2 Lane, Satbari, Chatarpur, Delhi. As he failed to pay the amount due under the cheque within 15 days, as stipulated in the statute, she approached the Court of the learned Chief Judicial Magistrate, Imphal West (hereinafter, 'the Trial Court'), through her power of attorney holder, by way of the subject complaint. Process was issued by the Trial Court against the petitioner herein under the orders dated 09.02.2021 and 04.03.2021. Aggrieved by these developments, he filed the present quash petition.
[3] An interim order was passed by this Court on 20.12.2021 to the effect that the warrant issued against the petitioner by the Trial Court should not be executed and leaving it open to him to appear before the Trial Court through video conferencing. However, the petition averments disclose that the bailable warrant issued against the petitioner by the Trial Court was cancelled in October, 2021, subject to his furnishing a bail bond for a sum of `50,000/- along with one local surety for a like sum. Be that as it may. [4] Heard Mr. Th.Mahira, learned counsel for the petitioner; and Mr. Mangsatabam Rarry, learned counsel, appearing for the respondents. [5] Mr. Th.Mahira, learned counsel, would contend that the Trial Court does not have territorial jurisdiction to entertain the complaint case and proceed against the petitioner. He would point out that respondent No.1 resides at Delhi and presented the subject cheque at the Yes Bank Branch at Naraina Vihar, New Delhi. He would state that the bank account at Imphal was opened by respondent No.1 only 11 days before the presentation of the cheque and contend that the same demonstrates that she is abusing the process of law, knowing fully well that the parties were both permanent residents of Delhi. Learned counsel would also contend that there was a defect in the complaint Cril.Petn. No.39 of 2021 Page 3 case as no mention was made therein as to the petitioner receiving the Demand Notices dated 16.03.2020 issued by respondent No.1 after dishonour of the cheque. He would argue that the petitioner never received the said notices and in the absence of proof of receipt thereof, the complaint case was liable to be rejected straightaway. He would assert that the entire exercise was engineered by respondent No.1 to harass the petitioner, a resident of Delhi, and that the subject complaint case and the orders passed therein are liable to be quashed by this Court in exercise of inherent power under Section 482 Cr.P.C. [6] Per contra, Mr. Mangsatabam Rarry, learned counsel, would assert that the subject cheque was issued by the petitioner herein in discharge of a legal liability and the same was deposited by respondent No.1 for being credited to her bank account in the Yes Bank Branch at Thangal Bazar, Imphal, situated within the jurisdiction of the Trial Court. He would assert that, in terms of the legal position obtaining under the provisions of the Act of 1881 and the law declared in that regard by the Supreme Court, the Trial Court has territorial jurisdiction to adjudicate the complaint case. He would further assert that two demand notices were sent to the petitioner's known addresses at New Delhi and Delhi and the same would be sufficient in law. He would point out that the address of the petitioner in the cause title of this criminal petition is the same as the one to which a demand notice was sent, viz., S-206, Panchasheel Park, New Delhi, and contend that the petitioner cannot deny receipt thereof. He would argue that no grounds are made out to hold that the Trial Court lacks territorial jurisdiction and pray for rejection of this quash petition.
Both the learned counsel relied on case law in support of their respective contentions.
Cril.Petn. No.39 of 2021 Page 4 [7] Section 138 of the Act of 1881 provides that when a cheque
drawn by a person on a bank account maintained by him for payment of any amount of money to another person from out of that account for the discharge of any legally enforceable debt or other liability is returned by the bank unpaid, either because the amount of money in that account is insufficient to honour the cheque or it exceeds the amount arranged to be paid from that account, such person shall be deemed to have committed an offence and would be punishable with imprisonment for a term which may extend to two years or with fine or with both. Under clause (a) of the proviso thereunder, it is stated that nothing in the Section shall apply unless the cheque is presented to the bank within six months from the date on which it is drawn or within the period of its validity, whichever is earlier. Clause (b) of the proviso states that nothing in the Section shall apply unless the payee or the holder in due course makes a demand for payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. Clause (c) of the proviso states that nothing in the Section shall apply unless the drawer of such cheque fails to make the payment of the said amount of money to the payee or holder in due course within 15 days of the receipt of the said notice.
It is now a settled proposition that the offence under Section 138 occurs upon the dishonour of the cheque but prosecution in relation to such offence is postponed, by virtue of the provisos, till the failure of the drawer of the cheque to make payment within 15 days of receiving the demand notice. [8] Section 142(1) of the Act of 1881 states to the effect that notwithstanding anything contained in the Code of Criminal Procedure, 1973, -
Cril.Petn. No.39 of 2021 Page 5
(a) no Court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or 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; and (c) no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class shall try an offence punishable under Section 138.
Be it noted that Section 142(1) was originally Section 142 in the Act of 1881. However, the statute was amended by the Negotiable Instruments (Amendment) Act, 2015 (Act 26 of 2015), and, inter alia, Sections 142(2) and 142A were also inserted therein. These amended provisions came into effect from 15.06.2015. After such amendment, the original Section 142 was renumbered as Section 142(1). The newly added Section 142(2) states that the offence under Section 138 shall be inquired into and tried only by a Court within whose 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 than through an account, the branch of the drawee bank where the drawer maintains the account is situated. The 'Explanation' thereto states that for the purpose of clause (a), where a cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course maintains the account.
[9] The newly added Section 142A is titled 'Validation for transfer of pending cases'. Section 142A(1) states that notwithstanding anything contained Cril.Petn. No.39 of 2021 Page 6 in the Code of Criminal Procedure, 1973, or any judgment, decree, order or direction of any Court, all cases transferred to the Court having jurisdiction under Section 142(2), as amended by the Negotiable Instruments (Amendment) Ordinance, 2015 (Ordinance 6 of 2015), shall be deemed to have been transferred under this Act, as if that sub-section had been in force at all material times. The other sub-sections of Section 142A are of no relevance presently. [10] Prior to amendment of the Act of 1881 in 2015, plenty of controversy prevailed on various issues pertaining to Section 138, including territorial jurisdiction. Plethora of case law emanated on the subject.
In K.Bhaskaran vs. Sankaran Vaidhyan Balan and another [(1999) 7 SCC 510], a 2-Judge Bench of the Supreme Court held that an offence under Section 138 of the Act of 1881 has five components: (1) drawing of the cheque, (2) presentation of the cheque to the bank, (3) returning of the cheque unpaid by the drawee bank, (4) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, and (5) failure of the drawer to make payment within 15 days of the receipt of the notice. It was held that any Court having jurisdiction over the territorial limits wherein any of the five acts that constitute the components of the offence occurred would have the jurisdiction to deal with the case. It was further elaborated that if the five acts were done in five different areas, any one of the Courts exercising jurisdiction in those five areas would have jurisdiction and the complainant can choose any one of those Courts. Territorial jurisdiction under Sections 177, 178 and 179 of the Code of Criminal Procedure, 1973, was also considered. The Bench held that Section 138 required the making of a demand by the payee through a notice and the thrust in the provision is on the need to make a demand and Cril.Petn. No.39 of 2021 Page 7 once a notice is dispatched, his part is over. The Bench held that if a strict interpretation is given that the drawer should have actually received the notice for the period of 15 days to start running, a trickster cheque drawer would get the premium to avoid receiving the notice by different strategies and could escape from the legal consequence of Section 138. Thus, when a notice is returned by the sendee as unclaimed such date, per the Supreme Court, would be the commencement date for reckoning the period of 15 days contemplated in clause (c) to the proviso in Section 138. Such reckoning was held to be without prejudice to the right of the drawer of the cheque to show that he had no knowledge that the notice was brought to his address.
[11] In Harman Electronics Private Limited and another vs. National Panasonic India Private Limited [(2009) 1 SCC 720], another 2-Judge Bench of the Supreme Court again considered territorial jurisdiction of a Court to try an offence under Section 138 of the Act of 1881. In that case, the cheque was issued at Chandigarh and was presented at Chandigarh. The complainant, however, issued the demand notice from Delhi and the same was served upon the drawer of the cheque at Chandigarh. The case was instituted by the complainant at Delhi. In this situation, having considered the earlier decision in K.Bhaskaran (supra), the Supreme Court stated that it is one thing to say that sending of the notice is one of the ingredients for maintaining a complaint but it is another thing to say that dishonour of the cheque, by itself, constitutes an offence. According to the Supreme Court, receipt of the demand notice would ultimately give rise to the cause of action for filing a complaint. Issuance of the notice would not, by itself, give rise to a cause of action but communication of the notice would. The Bench held that for constituting an Cril.Petn. No.39 of 2021 Page 8 offence under Section 138, the notice must be received by the accused though it may be deemed to have been received in certain situations. The Bench therefore held that the Delhi Court had no jurisdiction to try the case. [12] Earlier, in Shri Ishar Alloy Steels Limited vs. Jayaswals Neco Ltd. [(2001) 3 SCC 609], a 3-Judge Bench of the Supreme Court considered clause (a) of the proviso to Section 138 of the Act of 1881. The facts of that case were as follows: The appellant had issued a cheque to the respondent on 21.07.1997 and the respondent presented it to its bank on 20.01.1998. In turn, the said bank presented it to the drawee bank on 24.01.1998. By that date, six months had elapsed since the date mentioned on the cheque. The cheque was returned unpaid by the drawee bank on that ground. A cheque bouncing case having been filed, the appellant's contention was that the cheque had been presented beyond the period of six months and, therefore, no offence was made out. However, the High Court held that presentation of the cheque to the collecting bank within six months was sufficient to maintain the complaint. Reversing that view, the Supreme Court opined that, to make out an offence under Section 138 of the Act of 1881, a cheque has to be presented to the drawee bank within the six months period and, therefore, presentation to the collecting bank within that period would not suffice. The decision in K.Bhaskaran (supra) was not considered by the 3-Judge Bench as it was on a different issue altogether.
[13] Again, in Nishant Aggarwal vs. Kailash Kumar Sharma [(2013) 10 SCC 72], a 2-Judge Bench of the Supreme Court considered the issue of territorial jurisdiction of Courts to try offences under Section 138 of the Act of 1881. This decision followed K.Bhaskaran (supra) on the point that a Cril.Petn. No.39 of 2021 Page 9 complaint could be filed in a Court that had jurisdiction over the place of presentation of the cheque though the drawer did not reside there. Significantly, the Bench went on to hold that the commission of the offence would be complete only on service of the demand notice and consequent failure on the part of the drawer to pay the demanded amount within the stipulated 15 days. In effect, the Bench held that issuance of the demand notice would not, by itself, give rise to a cause of action but communication of the notice would. Harman Electronics Private Limited (supra) was also considered and affirmed. [14] In M/s Escorts Limited vs. Rama Mukherjee [(2014) 2 SCC 255], the same 2-Judge Bench had occasion to again consider the question of territorial jurisdiction of Courts in relation to Section 138 of the Act of 1881. Relying on its earlier decision in Nishant Aggarwal (supra), the Bench held that Courts within whose jurisdiction the cheque is presented and dishonoured would also have jurisdiction to try the offence. In that case, the cheque was issued in Kolkata and presented in Delhi. As it was dishonoured, notice was issued from Delhi and proceedings were finally initiated at Delhi. The High Court, however, held that the Delhi Court did not have jurisdiction and asked the complainant to prosecute his case before the Kolkata Court. Disagreeing with this view, the Supreme Court affirmed that the Court within whose jurisdiction the dishonoured cheque was presented for encashment would also have jurisdiction to try the case. In effect, K.Bhaskaran (supra) was again reaffirmed. [15] The dichotomy between the views taken in K.Bhaskaran (supra) and later decisions, including Harman Electronics Private Limited (supra), was resolved by a 3-Judge Bench of the Supreme Court in Dasarath Rupsingh Rathod vs. State of Maharastra and another [(2014) 9 SCC 129].
Cril.Petn. No.39 of 2021 Page 10 Having considered the gamut of precedential law on the issue of territorial jurisdiction, the Bench summed up that the offence under Section 138 of the Act of 1881 is committed no sooner the cheque is returned unpaid for insufficiency of funds or for the reason that the amount exceeds the arrangement made with the bank. However, per the Bench, cognizance of such offence is forbidden under Section 142 of the Act of 1881 till a complaint, in writing, is made by the payee or holder of the cheque in due course within one month from the date the cause of action accrues under clause (c) of the proviso to Section 138. The Bench further held that the facts constituting the cause of action would not constitute the ingredients of the offence and the proviso to Section 138 simply postpones/ defers institution of criminal proceedings and taking of cognizance by the Court till such time the cause of action, in terms of clause (c) of the proviso, accrues to the complainant. Once that cause of action accrues to the complainant, per the Supreme Court, the jurisdiction of the Court to try the case will be determined by reference to the place where the cheque is 'dishonoured'. According to the Supreme Court, prosecution in such a case can be launched against the drawer of the cheque only before the Court within whose jurisdiction the 'dishonour' takes place, except in situations where the offence is committed along with other offences in a single transaction. It was finally held that the place, situs, or venue of judicial enquiry and trial of the offence must logically be restricted to where the drawee bank is located as the dishonour of the cheque takes place when the said bank returns the cheque unpaid.
[16] The curial wisdom expressed in the aforesaid decisions was in the context of the Act of 1881 prior to the amendments effected therein by the Negotiable Instruments (Amendment) Act, 2015.
Cril.Petn. No.39 of 2021 Page 11 In Bridgestone India Private Limited vs. Inderpal Singh [(2016) 2 SCC 75], a 2-Judge Bench of the Supreme Court considered the amended provisions of the Act of 1881 and more particularly, the newly added Sections 142(2) and 142A, in the context of territorial jurisdiction in relation to an offence under Section 138 of the Act of 1881. In that case, the cheque was issued by Inderpal Singh at Chandigarh and was presented by Bridgestone India Pvt. Ltd., the company, for being credited to its bank account in Indore. Upon dishonour of the cheque on account of 'exceeding arrangement', the company issued a demand notice but Inderpal Singh failed to pay the amount within the stipulated period. The company thereupon initiated proceedings against Inderpal Singh before the Court at Indore under Section 138 of the Act of 1981. Inderpal Singh raised the issue of territorial jurisdiction and the matter ultimately came before the Supreme Court. Reliance was placed by Inderpal Singh on Dashrath Rupsingh Rathod (supra), which held to the effect that the Court at the place where the cheque is dishonoured, viz., where the bank on which the cheque is drawn is located, would alone have jurisdiction to try the case under Section 138 of the Act of 1881. However, the company relied on the amended provisions of the Act of 1881 to overcome the legal position declared in Dashrath Rupsingh Rathod (supra). By virtue of these amended provisions and more particularly, Sections 142(2) and 142A, the Supreme Court observed that there was no room for any doubt that, with reference to an offence under Section 138 of the Act of 1881, the place where the cheque is delivered for collection, i.e., the branch of the bank of the payee or the holder in due course, where the drawee maintains an account, would be determinative of territorial jurisdiction. Observing that it was imperative for the present controversy that the Cril.Petn. No.39 of 2021 Page 12 company overcomes the legal position declared in Dashrath Rupsingh Rathod (supra) as well as the provisions of the Code of Criminal Procedure, 1973, the Supreme Court referred to Section 4 of the Negotiable Instruments (Amendment) Second Ordinance, 2015, whereby Section 142A was inserted in the Act of 1881. Perusal of Section 4(1) thereof, per the Supreme Court, left no room for doubt that in so far as an offence under Section 138 of the Act of 1881 is concerned, on the issue of jurisdiction, provisions of the Code of Criminal Procedure, 1973, would have to give way to the provisions of the instant enactment on account of the non-obstante clause in Section 142A(1) and likewise, any judgment, decree, order or direction issued by a Court would have no effect in so far as the territorial jurisdiction for initiating proceedings under Section 138 of the Act of 1881 is concerned. In that view of the matter, it was observed that the judgment rendered in Dashrath Rupsingh Rathod (supra) would not non-suit the company. The Bench voiced complete agreement with the contention advanced by the company in this regard and expressed satisfaction that Section 142(2)(a) of the Act of 1881 vested jurisdiction for initiating proceedings for an offence under Section 138 in the Court where the cheque is delivered for collection (through an account of the branch of the bank where the payee or holder in due course maintains an account). The Bench also recorded satisfaction, based on Section 142A(1), that Dashrath Rupsingh Rathod (supra) would not stand in the way of the company in so far as territorial jurisdiction for initiating proceedings was concerned. The appeal was accordingly allowed.
The view expressed in Bridgestone India Pvt. Ltd. (supra) finds affirmation in the later judgment of the Supreme Court in M/s Himalaya Self Cril.Petn. No.39 of 2021 Page 13 Farming Group and another vs. M/s Goyal Feed Suppliers [Transfer Petition (Criminal) No.273 of 2020, decided on 16.09.2020]. [17] In the case on hand, it is not in dispute that respondent No.1 has a bank account at the Yes Bank Branch in Thangal Bazar, Imphal. The date of opening of the said account does not have bearing on that irrefutable fact. The subject cheque was deposited at a Delhi Branch of Yes Bank for being credited to the said account. Mere presentation of the cheque at a Delhi Branch has no impact whatsoever in the light of the 'Explanation' to Section 142(2)(a), which categorically states that even if the cheque is delivered in any other branch of the bank of the payee, it shall be deemed to have been delivered to the branch where the payee actually maintains an account. Therefore, presentation of the cheque at a Delhi Branch of Yes Bank is of no import at all.
In the light of the amended provisions of the Act of 1881 and more so, Section 142(2)(a), and the edicts of the Supreme Court in relation thereto in Bridgestone India Pvt. Ltd. (supra) and M/s Himalaya Self Farming Group (supra), it cannot be doubted that institution of the complaint case before the Trial Court was strictly in accordance with law, as obtaining presently. The Trial Court has jurisdiction over the area in which respondent No.1 maintains her bank account, being the account to which the cheque amount was to be credited. Therefore, the Trial Court clearly has territorial jurisdiction to entertain and deal with the matter.
[18] As regards service of the demand notice in terms of the statutory requirement, it may be noted that one of the Demand Notices dated 16.03.2020 was addressed to the petitioner at S-206, Panchsheel Park, New Delhi, 110017, which is shown as his address in the cause title of this criminal petition. Notably, Cril.Petn. No.39 of 2021 Page 14 it is not even his case that he did not receive the same. He merely stated in paragraph No.2(d) of this petition that nothing was mentioned in the impugned complaint about the date on which the said notices were received by him. There is no denial, as such, by him of actual receipt of the demand notice. Such denial came only during the course of oral arguments. At this stage, it would be apposite to note the case law on the issue of service of a demand notice. [19] In D.Vinod Shivappa vs. Nanda Belliappa [(2006) 6 SCC 456], a 2-Judge Bench of the Supreme Court considered the issue of service of the demand notice in relation to Section 138 of the Act of 1881. It was observed therein that the drawer of the cheque makes himself liable for prosecution under Section 138 of the Act of 1881 if he fails to make payment within 15 days of the receipt of the demand notice given by the drawee and his failure to make such payment gives rise to the cause of action to the complainant to prosecute him under the said provision. It was pointed out that it is not the 'giving' of the demand notice but it is the failure to pay after 'receipt' of the demand notice by the drawer which gives rise to the cause of action to the complainant to file a complaint within the statutory period. In this regard, the Court observed that it is no doubt true that the receipt of the demand notice has to be proved but if the notice is refused by the drawee, it may be presumed to have been served. Elaborating further, the Supreme Court observed that in a case where the demand notice is not claimed, even though served by registered post, the drawer of the cheque may be called upon to rebut the presumption which arose in favour of service of the notice with the aid of Section 27 of the General Clauses Act, 1897 (hereinafter, 'the Act of 1897'). The Supreme Court however cautioned that no rule of universal application can be laid down that in all cases Cril.Petn. No.39 of 2021 Page 15 where notice is not served on account of non-availability of the addressee, the Court must presume service of notice. These observations were made in the context of a person who dodges the postman for about a month or two or a person who can get a fake endorsement made regarding his non-availability and can successfully avoid his prosecution, as the payee is bound to issue notice to him within a period of 30 days from the date of receipt of information about the dishonour of the cheque. The Supreme Court further pointed out that it is a matter of evidence and proof and even in a case where the demand notice is returned with the endorsement that the premises were found locked or the addressee was not available, it would be open to the complainant to prove at the trial, by evidence, that the endorsement was not correct and that the addressee, with knowledge of the notice, had deliberately avoided to receive the same. Applying the purposive construction or mischief rule propounded in Heydon's case [(1584) 76 ER 637], it was held that in interpreting a statute the Court must adopt that construction which suppresses the mischief and advances the remedy. In effect, the Supreme Court held that the question as to whether service of notice has been fraudulently refused by unscrupulous means and whether there was deemed service of the notice is essentially a question of fact and that must be considered in the light of the evidence on record. In such circumstances, per the Supreme Court, it would be premature for the High Court to quash the proceedings at the stage of issuance of process, under Section 482 Cr.P.C..
[20] In C.C.Alavi Haji vs. Palapetty Muhammed and another [(2007) 6 SCC 555], a 3-Judge Bench of the Supreme Court dealt with the requirement of giving a demand notice under Section 138 of the Act of 1881.
Cril.Petn. No.39 of 2021 Page 16 The matter came before the 3-Judge Bench in view of the reference made by a 2-Judge Bench on the ground that, in D.Vinod Shivappa (supra), the Court had not taken into consideration the presumption arising under Section 114 of the Evidence Act, 1872 (hereinafter, 'the Act of 1872'). The referring Bench was of the opinion that as the presumption under Section 114 is a rebuttable one, the complaint should necessarily contain averments to raise a presumption of service of the notice, meaning thereby, it would not be sufficient for the complainant to merely state that the notice was sent by registered post and was returned with the endorsement 'out of station' and there must be a further averment that the addressee/drawer had deliberately evaded receiving the notice or that the addressee had knowledge of the notice. However, the 3-Judge Bench held that there is no necessity of making an averment in the complaint that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved. It was further held that once a notice is sent by correctly addressing the drawer of the cheque, service of notice is deemed to have been effected. Reference was made by the Bench to Section 27 of the Act of 1897, which gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post, and it was held that once this act has been referred to in the complaint, it is unnecessary for the complainant to further aver that it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Per the Bench, 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. It was observed that any drawer who claims that he had not been served with the notice can, within Cril.Petn. No.39 of 2021 Page 17 15 days of the receipt of the summons from the Court in respect of the complaint filed under Section 138 of the Act of 1881, make payment of the cheque amount and submit to the Court that he had made such payment within 15 days of the receipt of the summons and, therefore, the complaint is liable to be rejected. It was further observed that a person, who does not pay the cheque amount within 15 days of the receipt of the summons from the Court, cannot thereafter contend that there was no proper service of the demand notice as required under Section 138, by ignoring the statutory presumption to the contrary under Section 27 of the Act of 1897 and Section 114 of the Act of 1872. In that case, there was no averment in the complaint that the demand notice had even been sent to the correct address of the drawer. However, the returned envelope was annexed to the complaint and the same showed that the notice had been sent by registered post to the correct address and was returned with the endorsement 'addressee abroad'. On these facts, the Supreme Court held that the requirement of Section 138 of the Act of 1881 as to service of a demand notice had been sufficiently complied with.
Be it noted that in Dashrath Rupsingh Rathod (supra), the supplementing judgment of Hon'ble Mr. Justice T.S.Thakur, as the learned Judge then was, specifically referred to C.C.Alavi Haji (supra) but no discordant note or distinguishing on facts was made by that co-ordinate Bench in relation to the ratio recorded therein.
[21] In the light of the law laid down by the Supreme Court in C.C.Alavi Haji (supra), a presumption arises as to the service of the demand notice upon the petitioner as the address was shown correctly and there is no evidence of the said notice being returned unserved. Further, as pointed out in Cril.Petn. No.39 of 2021 Page 18 the said decision, this is a matter for evidence and cannot constitute a ground for non-suiting the complainant at the threshold. It is for the petitioner to rebut the statutory presumptions in this regard with satisfactory evidence. [22] On the above analysis, this Court finds that the learned Chief Judicial Magistrate, Imphal West, has territorial jurisdiction to entertain, try and adjudicate the subject complaint case and the pleas to the contrary by the petitioner, on all counts, are bereft of merit.
No grounds are made out for exercising inherent power under Section 482 Cr.P.C. to quash and set aside the subject complaint case or the orders passed therein.
The criminal petition is accordingly dismissed.
Interim order shall stand vacated.
A copy of this order shall be supplied online/through WhatsApp to both the learned counsel.
CHIEF JUSTICE
FR
Opendro
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