Manoj Sahi vs State Of U.P. & Another
2015 Latest Caselaw 2300 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Present petition has been filed by the petitioner Manoj Sahi with the prayer to quash the summoning order dated 01.09.2009 passed by Additional Chief Judicial Magistrate Third, Varanasi in complaint case no.1635 of 2009 (H.P.S. International Pvt. Ltd. Vs. Manoj Sahi), Police Station Sigra, District Varanasi, by which the petitioner has been summoned to face trial for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act').
 
Heard learned counsel for the petitioner as well as learned AGA for the State and learned counsel for the opposite party no.2 and perused the record.
 
The factual matrix of the present case is that the opposite party no.2, H.P.S. International Pvt. Ltd. through its Director Vivek Beri through power of attorney Ram Keshav Dubey filed a complaint against the petitioner before the Magistrate concerned with the prayer to punish the petitioner for the offence under Section 138 of the Act. The allegations as made in the said complaint are that the complainant is a private company and is doing the work of publication of books and supply of the same to book sellers for sale on borrow or payment in cash as per their demand. The accused/ petitioner is a book seller and on his demand certain books were supplied to him and for making payment of said books, the accused provided two post dated cheques dated 07.05.2008 for Rs.1,00,000/- and Rs.9,16,000/- to be paid from two different accounts of UCO Bank, Branch Brajraj Nagar. It is further alleged in the complaint that the complainant before producing the said cheques before the concerned Bank has sent a registered letter on 08.08.2008 to the accused to the effect that the cheques shall be presented after 25.08.2008 for encashment and thereafter on 05.09.2008 the said cheques were presented in his accounts in Syndicate Bank, Main Branch, Varanasi for payment, but the said two cheques were dishonoured on 18.09.2008 by the concerned Bank with the endorsement that the accounts were closed and signature of the drawer differs. After receiving the information on 24.10.2008 about dishonour of cheques, the complainant company through its lawyer sent a registered AD letter on 01.11.2008 to the accused informing about the dishonour of cheques by the concerned Bank and demanding payment under aforesaid cheques, but the said notice was returned to the sender due to absence of accused since long time. Thereafter, on 20.11.2008 again a registered notice was sent by the complainant company through its lawyer to the accused, but the same was refused to accept by him on 02.12.2008, which shows that the accused was intentionally not receiving the said information, whereas he has sufficient information about dishonour of the cheques. It is further alleged that the accused inspite of having sufficient information about notice and receiving information about dishonour of the cheques, did not pay the amount in question to the complainant within time and, as such, has committed offence under Section 138 of the Act, hence the complaint was filed within time on 13.01.2009.
 
On filing the said complaint before the concerned Magistrate, the Magistrate took cognizance on the same and thereafter statement of the complaint was recorded u/s 200 Cr.P.C. in support of allegations made in the complaint and several documentary evidence including original cheques, dishonour slip, registered receipt and copy of the notice sent to the accused were filed on behalf of complainant as evidence under Section 202 Cr.P.C.
 
Learned Magistrate after considering the allegations in the complaint, statement of the complainant and all other materials has summoned the accused- petitioner for the offence punishable under Section 138 of the Act finding a prima facie case to be made out against him for the said offence.
 
Aggrieved against the said summoning order dated 01.09.2009, the petitioner approached this Court by way of filing present petition with the prayer to quash the said summoning order.
 
Learned counsel for the petitioner has mainly contended that the learned Magistrate has illegally summoned the petitioner on the complaint, which was not maintainable as it was barred by time. It has been submitted that cause of action for filing the complaint arises only once, but in the present matter after sending second notice the complaint was filed, whereas the cause of action was arisen when the first notice was sent, but the complaint was filed after the second notice, which was not maintainable as it was barred by time. In support of his contentions, learned counsel for the petitioner has relied upon the following three decisions of the Apex Court:-
 
1. Tameshwar Vaishnav vs Ramvishal Gupta reported in 2010(1) JIC 475(SC),
 
2. Prem Chand Vijay Kumar Vs. Yash Pal Singh reported in LAWS (SC)-2005-5-55, and
 
3. V.Raja Kumari Vs. R.Subbarama Naidu reported in LAWS(SC)-2004-11-45
 
On the other hand learned counsel for the opposite party no.2 and learned AGA have submitted that as first registered notice dated 01.11.2008 was returned due to long absence of the petitioner (drawer), hence second legal notice (through registered post) was sent on 20.11.2008, which was refused as unclaimed by the petitioner and the said endorsement of refusing was made on 02.12.2008, hence after waiting for 15 days to make payment, the complaint was filed on 13.01.2009 and hence the same was within time. It has further been submitted that as the first registered notice was returned back due to long absence of accused on the given address, hence the second notice was sent and it was refused and accordingly the cause of action was arisen when the second notice was refused and thereafter the complaint was filed within time in view of Section 142 of the Act. In support of his contentions, learned counsel for the opposite party no.2 has relied upon following two decisions of the Apex Court:-
 
1. Dalmia Cement (Bharat) Limited Vs. Galaxy Traders and Agencies Limited reported in 2001 Legal Eagle (SC)) 105 and
 
2. S.L. Construction & Anr. Vs. Alapati Srinivasa Rao & anr. reported  in 2008 Legal Eagle(SC) 1424
 
I have considered the aforementioned submissions made on behalf of the learned counsel for the parties and perused the entire materials on record along with aforesaid rulings of the Apex Court cited by learned counsel for the parties.
 
From perusal of the materials available on record it appears that two cheques given by the accused- petitioner regarding payment of books purchased from the complainant, when presented before the concerned Bank, the said cheques were dishonoured with the endorsement as the accounts closed and signature of drawer differs and when the information was received about the said dishonour of cheques by the complainant company on 24.10.2008, a registered legal notice was sent to the accused on 01.11.2008 giving information about dishonour of the cheques and making demand of the amount under cheques, but the said notice was returned with the endorsement that the accused was absent from long time and thereafter the second notice was sent on 20.11.2008, which was refused by the accused to accept on 02.12.2008 and thereafter the complaint was filed on 13.01.2009.
 
Now for consideration of the question as to whether the complaint was within time or not, the relevant provisions of Sections 138 and 142 of the Act are to be considered. For ready reference, the said two provisions of the Act are quoted below:-
 
Section 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, [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. 
 
Explanation.-- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.
 
Section 142 . Cognizance of offences.- 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 Sec. 138.
 
On the submissions made by learned counsel for the parties, in this matter for the purposes of accruing cause of action, it has to be considered and decided as to whether the first registered notice sent by the complainant, which was returned back to sender by the postal department due to long absence of the drawer (petitioner) would be sufficient service on drawer or the second notice, which was returned back as refused by the drawer (petitioner) shall be deemed to be served upon him.
 
The Apex Court in Tameshwar Vaishnav vs Ramvishal Gupta (supra) as cited by the learned counsel for the petitioner has held that the first notice was received by the appellant, but the complaint was filed after sending of the second notice, hence the same was beyond time from the date of receiving of the first notice and the learned Magistrate has wrongly taken cognizance on the said complaint, hence the cognizance taken on the complaint, which was filed after the second notice was sent, whereas the first notice was already received by the accused-appellant was set aside. While considering the facts of the said case, the Apex Court has also considered the view which was taken in Prem Chand Vijay Kumar Vs. Yash Pal Singh (supra) and the case of S.L. Construction & anr. Vs. Alapati Srinivasa Rao & anr. (supra). The only distinguishing feature of the decision in S.L. Construction's case (supra) was that of three notices issued, the first two never reached the addressee and it is only after the third notice was received that the cause of action arose for filing the complaint. In effect, the cause of action for filing the complaint in the said case did not arise with the issuance of the first two notices since the same were never received by the addressee.
 
In the case of Prem Chand Vijay Kumar Vs. Yash Pal Singh (supra), the Apex Court has held that if dishonour of a cheque has once snowballed into a cause of action it is not permissible for a payee to create another cause of action with the same cheque. It has also been held that the magistrate is forbidden from taking cognizance of the offence if the complaint was not filed within one month of the date on which the cause of action arose as has been provided in Section 142 of the Act. Completion of the offence is the immediate forerunner of rising of the cause of action. In other words, cause of action would arise soon after completion of the offence and period of limitation for filing of the application starts simultaneously running. In the said case the Apex Court has also discussed its earlier decision in the case of Sadanandan Bhadran vs. Madhavan Sunil Kumar (1998) 6 SCC 514 and Dalmia Cement (Bharat) Ltd. v. Galaxy Traders & Agencies Ltd. and Ors. (2001 (6) SCC 463). In Sadanandan Bhadran's case it has been held that once a notice under clause (b) of Section 138 of the Act is "received" by the drawer of the cheque, the payee or holder of the cheque forfeits his right to again present the cheque as cause of action has accrued when there was failure to pay the amount within the prescribed period and the period of limitation starts to run which cannot be stopped on any account. 
 
The Apex Court in the case of V.Raja Kumari Vs. R.Subbarama Naidu (supra) has held that it is well settled that a notice refused to be accepted by the addressee can be presumed to have been served on him, but in the said case the notice was returned as addressee being not found and not as refused. In the said connection a reference of Section 27 of the General Clauses Act, 1897 was also considered and it has been observed that no doubt Section 138 of the Act does not require that the notice should be given only by "post". Nonetheless the principle incorporated in Section 27 can profitably be imported in a case where the sender has despatched the notice by post with the correct address written on it, then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such non-service. Any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to the strategy of subterfuge by successfully avoiding the notice. In the said case in view of the office report it was observed that it would be clear that the respondents obviously managed to have the notice returned with postal remarks "not available in the house", "house locked" and "shop closed" respectively. In that view, it must be deemed that the notices have been served on the respondents, but it was also observed that where material is brought to show that there was false endorsement about the non-availability of noticee, the inference that is to be drawn has to be judged on the background facts of each case. 

In the case of Dalmia Cement (Bharat) Limited Vs. Galaxy Traders and Agencies Limited (supra), the Apex Court has held that it is well settled that a notice refused to be accepted by the addressee can be presumed to have been served on him. In the said case after refusing of the first notice, a letter was sent by the respondents intimating that they received one empty envelope without any content in it and, therefore, requested to send the content, if any and when the said intimation was received by the complainant on the day on which the period of limitation on the basis of earlier notice was to expire and thereafter they had exercised the option to accept the averments made by the respondents in their letter and issue a fresh notice after again presenting the cheque. The respondents have not denied the issuance of their letter intimating that they received one empty envelope and thereafter issuing the second notice, the complaint was filed and it was held that it was maintainable and within time.

In the case of S.L. Construction & Anr. Vs. Alapati Srinivasa Rao & anr. (supra) it has been held by the Apex Court that as first notice having not been served and the second notice having been withdrawn in terms of the reply issued by the learned advocate for the complainant, cannot be said to have committed any illegality in presenting the cheque for the third time and issuing the third notice upon the defaulter.

Now coming to the facts of the present case, the two cheques issued by the petitioner to the complainant company, opposite party no.2 were presented before the concerned Bank, which was dishonoured with the endorsement that the drawer's signature was incomplete and accounts closed and after receiving of the said information from the Bank concerned, the complainant company sent a registered notice on 01.12.2008 about informing that the said cheques were dishonoured and also demanded payment of amount, but the said notice was returned with the endorsement that the drawer was absent for long time and thereafter on 20.11.2008 second notice was sent, which was refused to accept by the drawer (accused) on 02.12.2008 and thereafter after waiting for 15 days for making payment as has been provided under clause (c) of Section 138 of the Act, the complaint was filed on 13.01.2009 in view of Section 142 of the Act, which was well within time and learned Magistrate concerned has taken cognizance in the matter and after recording statement of the complainant u/s 200 Cr.P.C. and taking other documentary evidence u/s 202 Cr.P.C. has summoned the accused petitioner to face trial for the offence under Section 138 of the Act finding prima facie case to be made out against him for the said offence.

The primary interest of the payee is to get the money and not prosecution of the drawer, recourse to which, normally, is taken out of compulsion and not choice. Section 138 of the Act has been enacted to punish unscrupulous drawer of cheques, who, though purport to discharge their liability for issuing cheque, have no intention of really doing so. Apart from civil liability, the criminal liability is sought to be imposed by the said provision and such unscrupulous drawers of the cheque. However, with a view to avert unnecesary 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 as has been provided under clauses (a), (b) & (c) to proviso of Section 138 of the Act. The object of the notice is to give a chance to the drawer of cheque to rectify his omission and also to protect a honest drawer. Service of notice of demand in clause (b) to proviso of Section 138 of the Act is precedent for filing a complaint under Section 138 of the Act.

The Apex Court in Prem Chand Vijay Kumar Vs. Yash Pal Singh (supra) has held that the followings facts are required to be proved to successfully prosecute the drawer for an offence under Section 138 of the Act: (a) that the cheque was drawn for payment of an amount of money for discharge of a debt/liability and the cheque was dishonoured; (b) that the cheque was presented within the prescribed period; (c) that the payee made a demand for payment of the money by giving a notice in writing to the drawer within the stipulated period; and (d) that the drawer failed to make the payment within 15 days of the receipt of the notice. Proceeding on the basis of the generic meaning of the term "cause of action", certainly each of the above facts would constitute a part of the cause of action but clause (b) of Section 142 gives it a restrictive meaning, in that, it refers to only one fact which will give rise to the cause of action and that is the failure to make the payment within 15 days from the date of the receipt of the notice. A combined reading of Sections 138 and 142 makes it clear that cause of action is to be reckoned accordingly. The combined reading of the above two sections of the Act leaves no room for doubt that cause of action within the meaning of Section 142(c) arises - and can arise - only once.

The petitioner nowhere has stated about the receiving of the first registered notice sent by the complainant and now challenging the summoning order through present petition on the basis that the filing of the complaint after second notice was barred by time, which clearly shows that the intention of the petitioner was not bona fide and he was intentionally avoiding the payment under the cheques on unreasonable technical grounds.

In the present matter as first registered legal notice was returned by the postal department due to long absence of the drawer, hence the second notice was sent, which was also returned with the endorsement as refused, hence the complaint was filed from the date of said refusal, which would be amount to sufficient service and receiving of notice by the drawer. It is well settled that a notice refused to be accepted by the drawer can be presumed to have been served on him. The returning of first notice due to long absence of the drawer cannot be said to be served on the drawer and accordingly if the first notice was returned due to long absence, hence second notice was rightly given and the same was refused which shall be presumed to have been served on the drawer, hence the cause of action was accrued from the date of such refusal and the complaint filed after service of notice shall be well within time as been held by the Apex Court in the case of S.L. Construction & anr. Vs. Alapati Srinivasa Rao & anr. (supra).

In view of the aforesaid considerations and discussions, the complaint filed by the complainant after service of notice as refused by the drawer (petitioner) was well within time and the learned Magistrate has rightly summoned the petitioner to face trial for the offence punishable under Section 138 of the Act and this petition has no force and is liable to be dismissed.

Accordingly, the petition is dismissed.