The Allahabad High Court in a petition filed seeking the quashing of proceedings under Section 138 of the Negotiable Instruments Act, held that a demand notice sent to the drawer of a cheque through 'email or WhatsApp' under Section 138 of the Negotiable Instrument for the dishonour of a cheque, is a valid notice and the same shall be deemed to be dispatched and served on the same date if it fulfils the requirement of Section 13 of the Information Technology Act.
Brief Facts:
The present application u/s 482 Cr.P.C. has been filed to quash the summoning order dated 09.11.2022 as well as the entire proceedings of Complaint Case No.3721 of 2022 (Shiv Prakash Tiwari Vs. Rajendra), under Section 138 of the Negotiable Instruments Act, 1881.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the petitioner contended that the impugned complaint is itself defective as the same was filed before the expiration of 15 days from the date of service of notice. It is further contended by learned counsel for the applicant that after bouncing the cheque on 13.07.2022, legal notice was sent to the applicant by the opposite party no.2 on 23.07.2022 and, thereafter, without mentioning any date for service of notice, the complaint was filed on 31.08.2022. It is further contended by learned counsel for the applicant that in the absence of any date of service mentioned in the complaint, the presumption of 30 days under Section 27 of the General Clauses Act, 1977, should come into play, and it should have been filed after 45 days of sending a notice.
Contentions of the Respondent:
The learned counsel appearing on behalf of the respondent contended that it is an established legal position of law that the date of service of notice sent by the complainant upon the drawer of the cheque is not required to be mentioned in the complaint and the defence whether notice has been served or not upon the drawer of the cheque can be considered during the trial, and that cannot be a case for quashing the proceeding of a complaint under the Act of 1881.
Observations of the court:
The court framed two questions for consideration-
- Whether the impugned complaint is defective under Clause (c) of the proviso to Section 138 of the Negotiable Instrument Act, being filed before the expiry of Fifteen days from the date of service of notice.?
- ii. Whether the law requires to mention the date of service of notice upon drawer in the complaint filed against him under Section 138 N.I. Act?
The court referred to the decision of the court in the case of C. C. Alavi Haji vs Palapetty Muhammed and another, wherein it was held that in case of notice through registered post on the correct address of the drawer, the presumption of service upon drawer can be made under Section 27 of General Clause Act by taking into consideration the time for service of notice in the ordinary course of business and stated that it is a clear case that if the complainant sends notice to the drawer through the registered post though no date of service is mentioned, even then, the court can presume under Section 114 of the Evidence Act as well as Section 27 of the General Clause Act that the notice has been served in time when a letter sent through the registered post would have been delivered in the ordinary course of business.
Further to answer the question as to what would be the time frame in which the court may presume delivery of the registered letter in the ordinary course of business, the Court noted that in the present time of digitalization and computerisation, a court can presume that a correctly addressed registered post would have been served upon the addressee within a maximum period of 10 days if the date of service is not mentioned in the complaint.
Further, the court stated that if no date of service has been mentioned in the complaint, then the court can presume under Section 114 of the Evidence Act and Section 27 of the General Clause Act that notice would have been served within ten days from the date of its dispatch. Though it is always open to the drawer of the cheque to take the plea during trial, the notice was never served upon him.
The court stated that in the present case, the complainant sent the notice on July 23, 2022, and therefore, assuming ten days for notice delivery, the applicant had until August 2, 2022, to pay the demanded cheque amount within the stipulated 15 days and a complaint could have been filed after August 17, 2022, and since, in the instant case, the complaint was filed on August 31, the Court ruled that the complaint was not defective under Clause (c) of the proviso of Section 138 as well as Section 142(1)(b) of NI Act.
The decision of the Court:
The court dismissed the application and issued the following directions to all Magistrates/Courts in the state:-
- Where complaint under N.I. Act is filed, then the concerned Magistrate/ Court will emphasise filing the post tracking report along with the complaint, if sent through Registered Post, so as to leave no scope for the dishonest drawer of cheque from taking the plea of non-service of the statutory notice of 15 days.
- Notice sent through 'email or WhatsApp', if it fulfils the requirement of Section 13 of the I.T. Act will also be a valid notice under Section 138 N.I. Act to the drawer of the cheque, and same will be deemed to be served on the date of dispatch, itself.
Case Title: Rajendra vs. State of U.P. and Anr.
Coram: Hon’ble Mr. Justice Arun Kumar Singh Deshwal
Case No.: APPLICATION U/S 482 No. - 45953 of 2023
Advocate for the Petitioner: Mr. Sunil Kumar, Mr. Chandan Singh, Mr. Narendra Singh
Advocate for the Respondent: Mr. Padmakar Rai
Read Judgment @LatestLaws.com
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