Punjab-Haryana High Court
M/S Mehak Steel Rolling Mills vs Ram Charan And Another on 19 February, 2010
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No. 1152-SBA of 2000
Date of decision: 19th February, 2010
M/s Mehak Steel Rolling Mills
... Appellant
Versus
Ram Charan and another
... Respondents
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Mr. H.R. Bhardwaj, Advocate for the appellant.
None for the respondents.
KANWALJIT SINGH AHLUWALIA, J.
M/s Mehak Steel Rolling Mills, Amloh Road, Mandi Gobindgarh through its partner Jagdish Rai has instituted present appeal against acquittal. The appellant is aggrieved against the order dated 20th October, 1998 passed by the Court of Additional Sessions Judge, Fatehgarh Sahib, whereby he accepted the revision petition and had set aside the order of summoning dated 23rd May, 1997 passed by the Court of Sub Divisional Judicial Magistrate, Amloh.
Briefly, the facts of the case can be noticed as under. M/s Mehak Steel Rolling Mills, Amloh Road, Mandi Gobindgarh through its partner Jagdish Rai had instituted a complaint under Section 138 of Negotiable Instruments Act, 1881 against Ram Charan son of Prahlad Rai proprietor of M/s Bombay Traders, Kang Market, Mandi Gobindgarh, Tehsil Amloh and M/s Bombay Traders, Kang Market, Mandi Gobindgarh, through its proprietor Ram Charan son of Prahlad Rai. It was stated in the complaint that the accused Ram Charan Criminal Appeal No.1152-SBA of 2000 2 and his proprietorship firm M/s Bombay Traders had business dealing with the complainant, M/s Mehak Steel Rolling Mills during the period 1996-97. On 12th July, 1996 accused had purchased iron material from the complainant firm vide Bill No.200. The amount of the Bill was Rs.9547/-. On 31st July, 1996, the accused made payment of Rs.9517/- through a cheque. A discount of Rs.30/- was given to the accused, the amount of the Bill was cleared and accounts of the parties became nil. After 31st July, 1996, the accused purchased iron material from the complainant firm, details of which were given in the complaint and are reproduced as under:
Bill No. Dated Amount
397 25.10.96 28,026.00
398 25.10.96 79,067.00
405 30.10.96 80,576.00
411 04.11.96 30,968.00
Total Rs. 2,18,637.00
Out of the said amount of Bill, the accused made payment of Rs.50,000/- and Rs.57,093/- vide two separate cheques and the cheques were encashed. However, in the accounts, balance of Rs.1,11,554/- was outstanding against the accused. To make payment towards this outstanding amount, accused Ram Charan being proprietor of accused No.2 M/s Bombay Traders, issued a cheque No. 2805808 dated 28th November, 1996 for Rs.80,576/- pertaining to Union Bank of India, Mandi Gobindgarh. The complainant firm deposited the cheque for collection in Punjab and Sind Bank, Mandi Gobindgarh. On presentation, the cheque was dishonoured on 25th November, 1997 with memo containing remarks that the funds were insufficient. It was also averred in the complaint that the complainant firm issued a mandatory notice calling upon the accused to make payment of the said cheque amount. The notice Ex.P3 dated 7th February, 1997 was allegedly Criminal Appeal No.1152-SBA of 2000 3 received by the accused on 10th February, 1997. The complainant firm also placed on record Under Postal Certificate (UPC) Ex.P8 to show that the notice was posted on 8th February, 1997 (Ex.P8 has been assigned twice). The acknowledgement slips Ex.P8 to P11 were also placed on record to show that notice was received by the accused. It will be pertinent to mention here that notice was received by Maya Devi.
The complainant led preliminary evidence. Jagdish Rai Partner appeared as PW-1. He proved various documents.
The Court of Sub Divisional Judicial Magistrate, Amloh on 23rd May, 1997 came to the conclusion that from the preliminary evidence led by the complainant firm, prima facie offence under Section 138 of Negotiable Instruments Act is made out against the accused and summoned the accused to face trial for 1st August, 1997.
The accused aggrieved against the order passed by the Court of Sub Divisional Judicial Magistrate, Amloh instituted a revision petition in the Court of Additional Sessions Judge, Fatehgarh Sahib on 26th September, 1997. The Court of Additional Sessions Judge, Fatehgarh Sahib formulated following two questions while deciding the revision petition:
(a) Whether a revision is maintainable against the order of summoning;
(b) Whether order of summoning was passed in consonance with the provisions of S. 138 of the Negotiable Instruments Act.
In answer to question No.1, the revisional Court held that revision petition is maintainable against the order of summoning. In answer to question No.2, the revisional Court below came to the conclusion that proper notice was not served upon the accused in Criminal Appeal No.1152-SBA of 2000 4 consonance with section 138-B of Negotiable Instruments Act. The revisional Court formulated this view on the ground that the acknowledgement slips Ex.P8, P9, P10 and P12 revealed that the notice was not received by Ram Charan accused himself or on behalf of M/s Bombay Traders, but the notice was received by some Maya Devi. It is stated that Maya Devi was not mentioned as partner, proprietor or relation of the accused. The lower revisional Court observed as under:
"10. ... ... ... As per provisio (b) and (c) of S. 138 of the Act, demand has to be made by the complainant by issuing notice in writing to the drawer and the complainant will have cause of action to file the complaint only after drawer fails to make the payment within 15 days of the receipt of the notice. Here since notice has not been served upon Ram Charan personally or through his authorized agent, therefore, it cannot be said that the notice has been served upon the drawer as per requirement of the provision of S.138 of the Act."
The complainant is aggrieved against the acceptance of the revision petition preferred by the accused and has filed appeal against acquittal in this Court. In application under Section 378(4) Cr.P.C., a ground was taken that dismissal of the complaint amounts to acquittal in summons case, therefore, appeal against acquittal is the only remedy available to the accused. A Division Bench of this Court on 20th November, 2000 accepted the application for condonation of delay and granted leave to appeal. At the time of acceptance of the application and grant of leave to appeal, accused respondent was represented by Mr.T.R. Chopra, Advocate.
Nobody had appeared for the accused respondent on August 6, 2009; August 20, 2009 and January 29, 2010. Since only one legal issue is involved for consideration of this Court, whether notice Criminal Appeal No.1152-SBA of 2000 5 was served upon the accused respondent or not, this Court has proceeded to decide the appeal after examining the record and the legal issue.
It is borne out from the record that the complainant had issued a cheque Ex.P1 on 28th November, 1996. On 25th January, 1997 vide Ex.P2 the cheque was returned, as funds were insufficient. On 7th February, 1996, the complainant had issued notice Ex.P3. To prove this fact, postal receipts were proved as Ex.P4 to P7, Postal Certificate Ex.P8 and acknowledgement slips as Ex.P8 to P11. The acknowledgement slips show that the notice was received by Maya Devi. The Court of Sub Divisional Judicial Magistrate, Amloh summoned the accused to stand trial but revisional Court accepted revision petition on the ground that proper service of notice was not effected upon the accused.
The legal position regarding service of notice is now well settled. In 'C.C. Alavi Haji v. Palapetty Muhammed' 2007(3) RCR (Criminal) 185, on reference, a three Judge Bench of the Hon'ble Supreme Court of India had conclusively determined the controversy raised in the present petition. To appreciate the question, it will be necessary to reproduce para 2 of the judgment, which reads as under:
"2. The matter has been placed before the three Judge Bench in view of a Reference made by a two-Judge Bench of this Court, pertaining to the question of service of notice in terms of Clause (b) of proviso to Section 138 of the Negotiable Instruments Act, 1881 (in short 'The Act'). Observing that while rendering the decision in D. Vinod Shivappa v. Nanda Belliappa, 2006(3) RCR (Criminal) 145 : 2006(3) RCR (Civil) 50 : 2006(2) Apex Criminal 315 : (2006)6 SCC 456, this Court has not taken into consideration the presumption in respect of an official act as provided under Section 114 of the Indian Evidence Act, Criminal Appeal No.1152-SBA of 2000 6 1872, the following question has been referred for consideration of the larger Bench:
'Whether in absence of any averments in the complaint to the effect that the accused had a role to play in the matter of non-receipt of legal notice; or that the accused deliberately avoided service of notice, the same could have been entertained keeping in view the decision of this Court in Vinod Shivappa's case (supra)?' Their Lordships, after having formulated the question, answered as under:
"17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the Court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object 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."Criminal Appeal No.1152-SBA of 2000 7
Therefore, in view of the law enunciated by Hon'ble Apex Court, proper service of notice is to be presumed. Accused respondent was well within his rights to pay the amount of cheque on appearance before the Summoning Court. Furthermore, in 'M/s Indo Automobiles v. M/s Jai Durga Enterprises and others' 2008(4) RCR (Criminal) 842, Hon'ble Apex Court observed as under:
"8. Admittedly, notice under Section 138B of the Negotiable Instruments Act was sent to the respondents through registered post and under a certificate of posting on their correct address of the respondents. The High Court had quashed proceeding on the ground that although notice through registered post and also under certificate of posting were sent by the appellant/complainant to the respondents but because of the endorsement of the postal peon, the service could not be said to have been effected. In our view, the High Court was not justified in holding that service of notice could not be found to be valid. In K.Bhaskaran v.
Sankaran Vaidhyan Balan & Anr., 1999(4) RCR (Criminal) 309; [1999(7) SCC 510], it has been held that the context of section 138B of the Negotiable Instruments Act invites a liberal interpretation favouring the person who has the statutory obligation to give notice under the Act because he must be presumed to be the loser in the transaction and provision itself has been made in his interest and if a strict interpretation is asked for that would give a handle to the trickster cheque drawer. It is also well settled that once notice has been sent by registered post with acknowledgement due in a correct address, it must be presumed that the service has been made effective. We do not find from the endorsement of the postal peon that the postal peon was at all examined. In V. Raja Kumari v. P. Subbarama Naidu & Anr., 2004(4) RCR (Criminal) 933 :
2005(1) Apex Criminal 58 : [2004(8) SCC 774], again this Court reiterated the same principle and held that the statutory notice under Sections 138 and 142 of the Criminal Appeal No.1152-SBA of 2000 8 Negotiable Instruments Act, 1881 sent to the correct address of the drawer but returning with the endorsement must be presumed to be served to the drawer and the burden to show that the accused drawee had managed to get an incorrect postal endorsement letter on the complainant and affixed thereof have to be considered during trial on the background facts of the case."
Negotiable Instruments Act, 1881 has not prescribed any mode for effecting service of notice upon the accused. In the present case, notice was sent through registered A.D. and Under Postal Certificate. It is well settled that Under Postal Certificate is proper mode of service. The Hon'ble Apex Court held that when the notice is sent at the correct address then it is deemed to have been served upon the addressee unless it is proved that it was not really served upon him. In the present case, no evidence was led by the accused that notice was not received. The revisional Court, merely on the ground that the acknowledgement slips were signed by Maya Devi, had held that no service was effected upon the accused and had dismissed the complaint. The view formulated by the revisional Court cannot be sustained.
Accordingly, the present appeal is accepted. The order passed by the revisional Court below is set aside. The complaint is restored to its original number in the Court of Sub Divisional Judicial Magistrate, Amloh. The Court of Sub Divisional Judicial Magistrate shall summon the accused to stand trial and shall proceed with the complaint from the stage the proceedings were set aside by the lower revisional Court. Petitioner, if so advised, in consonance with the observations of Hon'ble Apex Court rendered in C.C. Alavi Haji's case (supra), may make payment of the cheque amount and submit to the Court that he had made payment within 15 days of the receipt of summons. In that Criminal Appeal No.1152-SBA of 2000 9 case, the summoning Court is bound to reject the complaint. However, in case the amount is not paid, the argument that no proper service was effected upon the petitioner, will not be available to the accused respondent and he may opt to contest the complaint in accordance with provisions of law.
[KANWALJIT SINGH AHLUWALIA] JUDGE February 19, 2010 rps