Him Ispat Limited vs Bharat Berg Limited And Ors.
2004 Latest Caselaw 280 Del

ORDER

R.S. Sodhi, J.

1. This petition is directed against the order of the Additional Sessions Judge in Criminal Revision Nos. 15/1998 and 16/1998 whereby the learned Judge vide his order dated 9th December, 2000 has allowed the revision petitions and quashed the complaint under Section 138 of the Negotiable Instruments Act on the ground that the petitioner had issued two notices, one dated 23rd September, 1995 and another one dated 5th December, 1995 for the same cause of action.

2. It is contended by Counsel for the petitioner that the so-called first notice dated 23rd September, 1995 was never received by the accused/respondents and that a photo copy of a fax message cannot be treated as document admissible, at this stage of the proceedings, for the Court to arrive at a conclusion that the complaint suffers on account of limitation. He also contends that there is no record to show the receipt of notice dated 23rd September, 1995 and, therefore, in the absence of receipt of notice being established in accordance with law, the complaint could not have been quashed.

3. Counsel for the respondents on the other hand contends that taking the case at the highest that the respondents received a fax message in November, 1995 and the same is deemed to be a notice under Section 138 of the Negotiable Instruments Act would render the complaint time-barred. The second notice according to learned Counsel cannot be given the effect of extending limitation.

4. I have heard Counsels for the parties and it appears to me that the question whether notice has been served/received is a question of fact which will necessarily be proved in trial, specially when there are contentious issues raised as to the existence of the notice dated 23rd September, 1995 relied upon by the respondents. It would not be proper at this stage to hold that a notice dated 23rd September, 1995 was in fact sent and received when this notice has not been proved to have been received by the respondents.

5. Having given my careful consideration to the questions raised before me, I am of the opinion that the Additional Sessions Judge was not correct in quashing the complaint at the present juncture without allowing the parties to adduce evidence in support of their contentions at the trial. Whether the notices have been sent or received is a question of fact which must be determined at the trial.

In this view of the matter, I set aside the order under challenge and restore Criminal Complaint No. 4/1 /96 to its original file and number. Crl. M.C. 3740/2001 is accordingly allowed and disposed of.

The parties are directed to appear before the Trial Court on 3rd May, 2004.