Allahabad High Court
Kuber Sharma vs State Of U.P. And Another on 21 April, 2017
Author: Mukhtar Ahmad
Bench: Mukhtar Ahmad
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved A.F.R. Case :- APPLICATION U/S 482 No. - 27137 of 2009 Applicant :- Kuber Sharma Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Abhinav Prasad Counsel for Opposite Party :- Govt. Advocate,Pooja Srivastava Hon'ble Mukhtar Ahmad,J.
1. This application under Section 482 Cr.P.C. has been moved by the applicants with a prayer to quash the summoning order dated 11.05.2009 passed in complaint case no. 3893 of 2008 (Pramod Saxena Vs Kuber Sharma) under Section 138 N.I Act Police Station Civil Lines District Rampur. Further proceedings of the case are also prayed to be stayed.
2. Facts giving rise to this application in a nut shell are that a complaint bearing no. 3891 of 2008 under Section 138 and 142 N.I. Act was filed by opposite party no. 2 Pramod Saxena, alleging that applicant Kuber Sharma agreed to sell his house to the complaint for a sale consideration of Rs. 7,50,000/- out of which Rs. 7,00,000/- were paid as earnest money but later on it was found that property was mortgaged with the State Bank of India so money was returned by Kuber Sharma through a cheque bearing No. 523671 for Rs. 7,00,000/- lakh in favour of complaint on 05.10.2007. That cheque was deposited by Pramod Saxena for encashment in bank on 26.02.2008 but the same was dishonored on account of insufficient fund and information to this effect was given to him on 28.02.2008. Thereafter, a legal notice was sent by Pramod Saxena through his Advocate on 13.03.2008 by registered post with acknowledgment, (UPC) and through courier as well. It was further submitted that Kuber Sharma tried to avoid the service of notice sent through post but ultimately the notice sent through courier was served personally upon him on 25.04.2008. The proof of delivery of courier was provided to the complaint on 26.04.2008, but in compliance of the notice no payment was made. Thereafter a written complaint was filed in the court on 31.05.2008. Complainant examined herself under Section 200 Cr.P.C and deposited original cheque, postal receipt, bank memo UPC receipt copy of notice etc.
3. Learned C.J.M Rampur after considering the evidence available on record, came to the conclusion that there was prima facie evidence for proceedings under Section 138 of N.I Act and summoned accused applicant Kuber Sharma for facing trial vide order dated 11.05.2009. Assailing that order the present application has been preferred.
4. Heard Mr. Abhinav Prasad learned counsel for the applicant, Ms. Pooja Srivastava learned counsel for opposite party no. 2 learned A.G.A for State and considered the record available before the Court.
5. Learned counsel for the applicant submitted that no offence is made out against him as it has not been established that notice was served upon applicant. It is vehemently argued that as per complaint, notice dated 13.03.2008 was sent through registered post, (UPC) as well as through courier service but it is said that notice through courier service was served upon applicant on 25.04.2008 which prima facie seems to be unacceptable as for such a long period i.e., from 13.03.2008 to 25.04.2008 the notice was kept by courier service provider. In ordinary course it should have been served within 2 or 3 days. It is also stated that service of notice through courier service is not permissible and in that event if the notice dated 13.03.2008 is taken into consideration then in ordinary course it ought to have been served hardly within a week. If the service is presumed sufficient on 20.03.2008 then cause of action shall arose after expiry of 15 days i.e., 04.04.2008 and in this situation the complaint was to be filed within one month thereafter i.e., upto 03.05.2008, but the present complaint has been filed on 31.05.2008 which is barred by limitation but the learned Trial Court has not considered this aspect in correct perspective and has passed the summoning order in a very slip shod manner and thus arrived at a wrong conclusion, which is liable to be quashed by this Court. Reliance has been placed on Deepak Kumar vs. State of U.P. and other 2006 (8) ADJ 427.
6. Learned A.G.A and Ms. Pooja Srivastava learned counsel for opposite party no. 2 have denied these arguments. It is submitted that all the three modes were adopted by the complainant to serve the legal notice i.e., through registered post, UPC and courier service. Though applicant managed to avoid service of notice sent through post but notice sent through courier service was served personally on 25.04.2008 so complaint filed on 31.05.2008 is well within limitation period and learned Magistrate rightly summoned the applicant for facing the trial.
7. For appreciating the arguments it is apt to extract the ingredients for making an offence under Section 138 N.I. Act, which provides as under :-
138 Dishonour of cheque for insufficiency, etc., of funds in the account. --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 provisions 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, 20 [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.
8. On a careful analysis of the above sections, it is seen that its main part creates an offence when cheque is returned by the bank unpaid for any of the reasons mentioned therein. It is manifest that a competent court can take cognizance of a written complaint of an offence under Section 138 N.I. Act if it is filed within one month of the date on which cause of action arises under clause (c) of the proviso to Section 138 N.I. Act. In the light of the provisions quoted above, it may be formulated as under.
Pres-entati-on of cheque for enca-shment within stipu-alted period Dish-onour-ed by bank Notice within 30 days No payment within 15 days from its service Causes of action arises on next following day Within one month written complai-nt may be filed
9. The primary question for consideration is as to whether the mode of service of legal notice under Section 138 N.I. Act is confined to registered post only and service by courier is not permissible ? Section 138 of N.I. Act does not prescribe any mode for giving of the demand notice by the payee or holder of the cheque. The aforesaid issued was dealt in M/S Sil Import , Usa Vs. M/S Exim Aides Silk Exports AIR 1999 SC 1609. The Hon'ble Supreme Court while dealing with the issue focused on technology advancement and its applicability in law observed that the notice envisaged in clause (b) of the proviso to section 138 transmitted by fax would be compliance with the legal requirement.
10. In Suo Moto vs. Registrar High Court of Gujarat AIR 2002 Gujarat 388, the High Court of Gujarat, in view of the law of the Hon'ble Supreme Court in M/S Sil Import (supra) has held that applying the rule of construction as suggested by Supreme Court observed in para no. 7 that there may be other modes of service also, such as service by courier, by fax messages, or service by electronic male service or service of litigant directly etc. and there is nothing to exclude or prohibit the other modes of service. At this juncture it would be proper to mention that in Deepak Kumar case (supra) cited by learned counsel for the revisionist the question of presumption of service of notice sent through courier service was dealt by Single Judge of this Court but here in the matter in land the P.O.D is there. Further in view of the law cited above the courier service may be mode of serving the legal notice, as such it does not support the applicant.
11. We may also consider that the entire purpose of requiring the notice is to give an opportunity to the drawer to pay the cheque amount within 15 days of the service of the notice and thereby free himself form the penal consequences of Section 138. In Vinod Shivappa vs Nanda Belliappa (2006) 6 SCC 456 the Hon'ble Supreme Court discussed the detailed.
If a notice is issued and served upon the drawer of the cheque, no controversy arises. Similarly if the notice is refused by the addressee, it may be presumed to have been served. This is also not disputed. This leaves us with the third situation where the notice could not be served on the addressee for one or the other reason, such as his non availability at the time of delivery, or premises remaining locked on account of his having gone elsewhere etc. etc. If in each such case the law is understood to mean that there has been no service of notice, it would completely defeat the very purpose of the Act. It would then be very easy for an unscrupulous and dishonest drawer of a cheque to make himself scarce for sometime after issuing the cheque so that the requisite statutory notice can never be served upon him and consequently he can never be prosecuted. There is good authority to support the proposition that once the complainant, the payee of the cheque, issues notice to the drawer of the cheque, the cause of action to file a complaint arises on the expiry of the period prescribed for payment by the drawer of the cheque. If he does not file a complaint within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138 of the Act, his complaint gets barred by time. Thus, a person who can dodge the postman for about a month or two, or a person who can get a fake endorsement made regarding his non availability can successfully avoid his prosecution because the payee is bound to issue notice to him within a period of 30 days from the date of receipt of information from the bank regarding the return of the cheque as unpaid. He is, therefore, bound to issue the legal notice which may be returned with an endorsement that the addressee is not available on the given address.
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. (emphasis supplied)
12. One can also conceive of cases that where a well intentional 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 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 drawer whose cheque may have been dishonored for the fault of others, or who may have genuinely wanted to fulfill their promise but on account of inadvertence or negligence failed to make necessary arrangement 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, it being a part of their modus operandi to cheat the unsuspecting persons.
13. It may also be added that in the matter in hand address given in the notice, envelop, UPC and courier service (POD) as well as in complaint and in this application too is the same, hence it cannot be denied that notice was not sent to correct address. In HDFC Bank Ltd. Vs. Amit Kumar Singh the Delhi High Court has observed in para 25 that these days it is not difficult for a person sending a notice by registered post or by courier or by speed post to obtain a certificate of delivery from the postal department or the courier service agency. That certificate will indicate the status of the delivery; whether the notice did receive the notice or refused or that the notice has left the address or is not available. It would be for the court to be satisfied whether this would amount to service of notice.
14. In view of the discussion made above considering the proof of delivery of courier service (P.O.D) it comes out that after service of legal notice on 25.04.2008 the drawer of the cheque i.e., applicant failed to make payment of the demanded amount of money to the opposite party no. 2 within 15 days of the receipt of notice and cause of action arose on next following day. The complaint has been filed within one month from the accrued of cause of action, thus is well within the period of limitation.
15. Consequently application is devoid of merit and hereby dismissed.
16. Learned Magistrate is directed to decide the matter expeditiously without providing any adjournment to any of the parties unless if it is found very necessary. Copy of this order be also transmitted to the learned trial Court through office.
Order date: 21.04.2017 ujjawal