Prashant Chaudhary vs Ritesh Kumar Singh
2023 Latest Caselaw 28505 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


A.F.R.
 
Neutral Citation No. - 2023:AHC:198250 
 
Court No. - 81
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 4547 of 2023
 
Petitioner :- Prashant Chaudhary
 
Respondent :- Ritesh Kumar Singh
 
Counsel for Petitioner :- Saroj Kumar Yadav
 
Counsel for Respondent :- Gyanendra Prakash Srivastava
 

 
Hon'ble Mrs. Jyotsna Sharma,J.

1. Heard Sri Saroj Kumar Yadav, learned counsel for the petitioner, Sri Chandan Kumar Mishra, Advocate holding brief for Sri Gyanendra Prakash Srivastava, learned counsel for the respondent.

2. By means of this petition, the petitioner has challenged the order dated 10.12.2020 passed by the Court of Metropolitan Magistrate, Kanpur Nagar in complaint case no. 82 of 2020 (Ritesh Kumar Singh vs. Panki Indane Gas Service through Prashant Chaudhary) filed under section 138 of the Negotiable Instruments Act, 1881, whereby the petitioner was summoned to face trial for an offence under section 138 of the Negotiable Instruments Act and also the order dated 20.01.2023 passed in Criminal Revision No. 29 of 2023 (Panki Indane Gas Service through Prashant Chaudhary vs. Ritesh Kumar Singh and Another), whereby the order of the trial court was affirmed.

3. The relevant facts are as below:-

The respondent-Ritesh Kumar Singh filed a complaint under section 138 read with section 142 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the N.I. Act"), with the allegation that during business transactions between the two sides, an amount of Rs. 12,50,000/- became due on him. As part payment thereof, the opposite party issued a cheque. The cheque was returned to the complainant without encashment with the remark that 'Debit not Allowed". The complainant, therefore, issued a demand notice within time by registered post. The opposite party did not repay the amount within 15 days of its service, therefore, he filed a complaint. 

4. The submission of the petitioner is that there is nothing to suggest that demand notice was served on him, therefore, the essential ingredients for taking cognizance under section 138 of the N.I. Act were missing. It is further submitted that the amount, which fell due on him, was already paid by him, therefore, the summoning order is bad in law.

5. I went through the complaint, other papers which include a copy of the cheque, a copy of return memo given by the Bank and a copy of the notice. From the papers on record, it is revealed that cheque was dishonored on 07.11.2019. Notice was sent on 19.11.2019 through registered post and that no payment was made till 07.11.2019. The complaint was filed on 03.01.2020. The learned trial court, on the basis of the above, passed the order of summoning.

6. I also went through the order of the revisional court. The contentions which have been raised before this court were also raised before the revisional court. The revisional court dealt with each one of the objections/contentions raised by the revisionist and gave findings in para nos. 8, 9, 10 and 11 of the order. Learned revisional court observed that when a registered notice has been sent, there shall be a presumption, unless otherwise shown, that the notice was served in usual course. The revisional court referred to the judgment of Supreme Court in C.C. Alavi Haji vs. Palapetty Muhammed, (2007) 6 SCC 555.

7. The only point which has been specifically and vehemently pressed before this court is that it was nowhere written in the complaint as to when the notice was served on the accused. It is further argued that no evidence has been given to demonstrate that notice was served on a particular date. The contention is that where no particular date of service of notice has been disclosed, the time period of 15 days cannot be presumed to run from some unknown day and therefore the cognizance could not be taken.

8. The petitioner has referred to a judgment of the Supreme Court in Dashrathbhai Trikambhai Patel vs. Hitesh Mahendrabhai Patel and Another; 2022 (4) Civil Court Cases 279 (S.C.) and a judgment of Allahabad High Court in Deepak Kumar and Another vs. State of U.P. and Another; 2007 (2) Civil Court Cases 467 (Allahabad). I went through the judgments. In para no. 7, the High Court enumerated essentials which should have been fulfilled before the court could take cognizance of the offence under section 138 of the N.I. Act. It is argued that in the event of absence of any of the above mentioned necessary requirements, the offence shall not be made out. The relevant portion of para no. 7 is as below:-

"Thus, for making out an offence under Section 138, NI Act, four dates are very relevant to be mentioned in the complaint or at least they should be clear from the papers filed along with the filing of the complaint itself. These dates are (I) date mentioned on the cheque; (ii) date of its deposit in the bank for encashment (for knowing its period of validity), the date on which the notice/memo's advise from the bank was received by the drawee/payee or holder of the cheque regarding its bouncing because of insufficiency of funds by using any phraseology for the same (for determining the period of notice, which is one month, from such a date), the date of notice given by the drawee/payee to the drawer/payer of the cheque (to determine fifteenth day so as to bring "cause of action" to life, in case the chque money is not paid during this period), the date on which the said notice is received or served to the drawer/payer of the cheque (to determine the date on which the offence is made out, in case the cheque money is not paid within fifteen days of the service of the notice) and lastly, the date of filing of the complaint (for determining the jurisdiction of the Court to entertain the complaint within the prescribed period of limitation and complaint not being time-barred). If these dates are not perceptible from the complaint or papers accompanying it then the Magistrate has not jurisdiction to entertain the complaint for offense under Section 138, NI Act."

9. From the above observation, this much is clear that the date of the receipt of notice is very much important but it is not necessary that any particular date as regard receipt of demand notice should mandatorily be mentioned in the complaint itself. In judgment of Deepak Kumar and Another (supra), this High Court observed that in case dates are not revealed in the complaint, the same can be inferred from the paper on record.

10. The Supreme Court in Ajeet Seeds Limited vs. K. Gopala Krishnaiah; (2014) 12 SCC 685, specifically dealt with the absence of averments in a complaint about service of notice upon accused. In the aforesaid case, the Supreme Court agreed with the view taken in C.C. Alavi Haji vs. Palapetty Muhammed (supra), the court explained the nature of presumptions which can be drawn under section 114 of the Evidence Act and under 27 of the General Clauses Act. It was held as below:-

"9. This Court then explained the nature of presumptions under Section 114 of the Evidence Act and under Section 27 of the GC Act and pointed out how these two presumptions are to be employed while considering the question of service of notice under Section 138 of the NI Act. The relevant paragraphs read as under:

"13. According to Section 114 of the Act, read with Illustration (f) thereunder, when it appears to the Court that the common course of business renders it probable that a thing would happen, the Court may draw presumption that the thing would have happened, unless there are circumstances in a particular case to show that the common course of business was not followed. Thus, Section 114 enables the Court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. Consequently, the court can presume that the common course of business has been followed in particular cases. When applied to communications sent by post, Section 114 enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. But the presumption that is raised under Section 27 of the G.C. Act is a far stronger presumption. Further, while Section 114 of Evidence Act refers to a general presumption, Section 27 refers to a specific presumption. For the sake of ready reference, Section 27 of G.C. Act is extracted below:

"27. Meaning of service by post.- Where any Central Act or regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression 'serve' or either of the expressions 'give' or 'send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post".

14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. 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. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement 'refused' or 'not available in the house' or 'house locked' or 'shop closed' or 'addressee not in station', due service has to be presumed. [Vide Jagdish Singh Vs. Natthu Singh (1992) 1 SCC 647; State of M.P. Vs. Hiralal & Ors. (1996) 7 SCC 523 and V.Raja Kumari Vs. P.Subbarama Naidu & Anr. (2004) 8 SCC 74] It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act 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."

10. It is thus clear that Section 114 of the Evidence Act enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. Section 27 of the GC Act gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. It is not necessary to aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. 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."

From the above judgment of the Supreme Court, the controversy which has been raised by the petitioner is set at rest.

11. In this case the complainant, in his complaint, clearly stated that the notice was sent through a registered post on 19.11.2019 and that it was never returned to the complainant. In view of the above statement in the complaint and in view of the papers produced viz, the cheque, the Bank memo, demand notice, the disclosure of material dates like, date of dishounor, date of sending the notice, the date on which 15 days elapsed, the date of the filing of the complaint clearly and explicitly mentioned in para no. 12 of the complaint, there remains no doubt that the petition is wholly without merit. It may specifically be noted that para no. 12 of the complaint discloses a date of service of notice as well, a fact which has been conveniently ignored by the accused petitioner all the while. In my view, an attempt to stall the proceedings has been made on the basis of non-existent ground.

12. I do not find any infirmity, illegality or irregularity in the summoning order dated 10.12.2020 as well as the order dated 20.01.2023. Therefore, this petition is hereby dismissed.

Order Date :- 13.10.2023

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