First Elearning Quest Private ... vs Tera Construction Private Ltd.
2007 Latest Caselaw 2137 Del

JUDGMENT

V.B. Gupta, J.

1. Present Criminal Revision petition under Section 397 Cr.P.C. has been filed seeking quashing of the Criminal complaint and order dated 25th July, 2006 passed by Shri. Ajay Pandey, Metropolitan Magistrate taking cognizance and for issuance of summons to the accused persons.

2. Brief facts of this case are that the respondent herein filed a complaint case under Section 138 of Negotiable Instruments Act (for short as 'Act') against the present petitioner on the ground that petitioner was a tenant under the respondent and the petitioner had issued a cheque for a sum of Rs. 8,18,473/- drawn in favor of the respondent and assured the respondent that the above cheque would be encashed on presentation as the petitioners had sufficient funds in their bank account. Believing the representations of the petitioners, the respondent accepted the cheque. The respondent presented the cheque through its bankers but the cheque was returned back with the remarks "Funds Insufficient". Thereafter, statutory notice under Section 138 of Negotiable Instruments Act was sent to the petitioners by registered A.D. as well as UPC and later on the complaint was filed before the court of Magistrate and vide impugned order, the Magistrate summoned the present petitioners.

3. It has been contended by learned Counsel for the petitioners that the Magistrate has erroneously passed order of taking cognizance of offence under Section 138 of the Act as the allegations made in the complaint did not disclose any prima-facie offence. The dishonoured cheque on which entire case has been pleaded up by the complainant is an inadmissible piece of evidence. Further, notice for demand required to be issued under Section 138 of the Act has not been received by the petitioners and if issued at all, had been sent on wrong addresses and when statutory notice has not been received by the petitioners, no cause of action accrued to the respondent for launching the prosecution under Section 138 of the Act. The contents of the complaint also did not disclose any ingredients as required to complete the offence under Section c of the Act and there has been no mandatory provisions under Section 202(1) Cr.P.C.

4. Further, in the entire complaint or in the affidavit filed by the complainant, not a single word has been averred to the effect that the cheque allegedly issued by the petitioner No. 2 was drawn for discharge of any legally enforceable debt or liability. In the absence of any such allegations, no offence under Section 138 of the Act is made out and the Magistrate has illegally assumed, that a prima-facie case under Section 138 of the Act is made out. Moreover, there has been overwriting in the order sheets of the trial court proceedings and as such the summoning order and the complaint are liable to be quashed.

5. In support of her contentions learned Counsel for the petitioners cited number of judgment of various courts namely Krishnan and Anr. V. Krishnaveni and Anr. , Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre and Ors. , Dr. Sharda Prasad Sinha v. State of Bihar , Central Bureau of Investigation v. Ravi Shankar Srivastava IAS , Lt. Col. K.C. Sud v. S.C. Gudimani 20(1981) Delhi Law Times 302, M.V. Joshi v. M.U. Shimpi and Anr. , D. Vinod Shivappa v. Nanda Belliappa , P. Jithendranadh v. Walson Laboratories and Ors. , Jai Durga Enterprises and Anr. v. State of U.P. and Anr. AIR 2006 (NOC) 1244 (All.), B. Adhikari v. Ponraj I (1996) BC 530, Rajiv Kumar v. State of U.P. 1993 Company Cases (Vol 78), 507, L. Mani v. Kandan Finance 1996 Company Cases (Vol. 86), 205, Uplanche Mallikarjun v. Ratkanti Vimala I (1998) BC 677, K. Kumar v. Bapsons Foot Wear 1993 Company Cases (Vol. 83) 172, Maharaja Developers and Anr. v. Udaysingh Pratapsinghrao and Anr. AIR 2007 (NOC) 1372 (BOM), N. Harihara Iyer v. State of Kerala 2000 Crl.L.J. 1251 & K.S. Mallikarjuna Prasanna v. Leo Earth Movers I (1999) BC 506.

6. On the other hand, it has been contended by learned Counsel for respondent that during the course of arguments, the petitioner has nowhere disputed the fact that the cheque in question has not been issued by the petitioner. The cheque in question is dated 20th January, 2006 and this date has been mentioned in the complaint and this averment is wrong that the cheque is dated 29th January, 2006. The court of Magistrate at Tis Hazari has got jurisdiction to entertain and try the complaint since the cheque in question was received in the office of the complainant and deposited in its bank at Mori Gate which comes under jurisdiction of Tis Hazari Court.

7. The notice of the demand has been sent to the petitioners at their last address which was given by them in the lease deed executed between the parties and notice of demand was also sent to the petitioner No. 2 at her house address Flat No. 54, V Floor, Kailash Appartments.

8. No mode of service has been set out in the Act while in the Act, present case the notice of demand were sent at the correct address to the petitioner by registered A.D. Post as well as under certificate of posting, at the last address, since the petitioner has vacated premises without leaving their fresh address.

9. It is well settled that UPC is a proper mode of service and the same has been served upon the addressee and it has been laid down by the Supreme Court that when the notice is sent at the correct address then it is deemed to have been served on the addressee unless, he proves that it was not really served upon him.

10. Under these circumstances, the petitioners are deemed to have been served with the notice of demand and this is a question of fact which requires evidence and cannot be gone into in these proceedings. It shall be open to the petitioners to show that they have not received any such notice during trial for which the evidence is required.

11. Further, it is contended that it is very strange as to how the petitioners have come to know the date when the bailable warrants were ordered to be issued against them in the fore noon when the case was called and then immediately on same day i.e. 22nd September, 2006, the petitioners through their counsel appeared and filed an application for calling back the bailable warrants and giving undertaking for producing the petitioner No. 2 in the court on the next date of hearing i.e. 18th December, 2006. The petitioner has not appeared in person so far before the Magistrate nor got herself bailed out.

12. It is also contended that the cheque in question was issued in discharge of legally enforceable liability of the petitioners, though inadvertently and by mistake it has not been mentioned in the complaint. The petitioners do not deny the issuance of the cheque in question and the onus in on the petitioners to prove as to how and why the cheque in question was issued. This aspect is rebuttable which requires evidence and cannot be decided otherwise. Lastly, it is contended that present petition under Section 397 Cr.P.C. quashing of the complaint is not maintainable.

13. In support of his contentions learned Counsel for the respondent has cited various judgments namely Bishan Dayal (Sh.) v. Sh. Dinesh Kumar Singal 2007 IV AD (Crl.)(DHC) 499, Adalat Prasad v. Rooplal Jindal and Ors. 2004 SC (Crl.) 1927, V.K. Jain v. Sharad Jagtiani 134 (2006) Delhi Law Times 315 and, K. Bhaskaran v. Sankaran Vaidhyan Balan and Anr. .

14. The main thrust of learned Counsel for the petitioner is that notice under Section 138 of the Act has not been served upon the petitioners and under these circumstances, the present complaint filed by the respondent before the court of Magistrate is not maintainable.

15. As per record, notice of demand issued under Section 138 of the Act was sent by registered A.D. as well as under postal certificate at the following addresses of the petitioners:

1. D-21, Pushpanjali, Brijwasan, New Delhi-110061.

2. Flat 54, V Floor Kailash Apartments, near Bluebell School, Lady Shri Ram College, New Delhi.

16. The registered envelop sent at the address of Brijwasan was received back unserved with the report that "at the given address there is no company and the premises remain locked" while the registered envelop sent at the Kailash Apartments was received back unserved with report as "on repeated visits the addressee is not available."

17. There is nothing on record to show that the notices sent under certificate of posting at these addresses were received back unserved or refused.

18. It is well settled that if a notice is dispatched under certificate of posting with correct address of drawer written on it, presumption of service of notice arises.

19. In V.K. Jain's case (supra) which is a Division Bench decision of this Court, case of Prakash Jewellers v. A.K. Jewellers 99 (2000) DLT 244, was referred, which being a judgment of Division Bench is binding on this Court.

20. In the said case, the Division Bench specifically opined that the notice under Section 138 of the Act can be served either through Registered Post or though UPC. It was also held that if a notice is even dispatched by UPC with correct address of the drawer written on it, presumption of the service of the said notice arises. Relevant discussion contended in para 10 and 11 of the judgment are reproduced as below:

10. As it is, Section 138 does not prescribe any mode for giving of demand notice by the payee or holder of the cheque. But where such notice is served by post through registered post or postal certificate, etc, with the correct address of the drawer written on it, it would raise a presumption of service unless the drawer proves that it was not received by him in fact and that he was not responsible for such non-service. This is in tune with the principle embodied in Section 27 of the General Clauses Act or even Rule 19-A of Order V, CPC.

11. Section 27 of the General Clauses Act deals with the presumption of service of notice sent by post and provides that service of such notice shall be deemed to have been affected unless the contrary is proved. This principle is equally applicable to the service of notice for purpose of Section 138 of Negotiable Instruments Act also. The same would be said about the provision of Rule 19-A of Order V, CPC which requires a Court to make a declaration of summons having been duly served and dispatched through registered post notwithstanding that AD card had been lost or misplaced or not received back within 30 days for some other reason. The relevant proviso provides:

Provided that where the summons was properly addressed, prepaid and duly sent by registered post, acknowledgment due, the declaration referred to in this sub-rule shall be made notwithstanding the fact that the acknowledgement having been lost or mislaid, or for other reason, has not been received by the Court within thirty days from the date of the issue of the summons.

21. Now, the question which arises for consideration is as to whether the notice under UPC has been sent at the correct address of the petitioner or not.

22. Respondent in its reply to the present revision petition has stated that notice of demand was sent to the petitioners at their last known address at D-21, Pushpanjali, Brijwasan, New Delhi which was given by them in the lease deed executed between the parties.

23. Further, notice of demand was also sent to the petitioner No. 2 at her house address Flat No. 54, Vth Floor, Kailash Apartments.

24. The petitioner in counter reply has stated that respondent has averred a blatant lie that the notice of demand was sent to both the petitioners at their known address at D-21, Pushpanjali, Brijwasan, New Delhi. The respondents have mischievously stated so knowing very well that the petitioners had permanently shifted out from D-21, Pushpanjali to B-1/E-11 Mohan Cooperative Industrial Area, Mathura Road, New Delhi.

25. So, from this counter reply it stands clearly established that earlier petitioner was residing at D-21, Pushpanjali, from where they shifted later on. There is nothing on record to show that the petitioner ever informed the respondent about shifting of their address from D-21, Pushpanjali to some other place.

26. Under these circumstances, the respondent was justified in sending the notice of demand at the last known address of the petitioner. Further, presumption will arise that notice sent at Brijwasan address under certificate posting has been duly received by the petitioner.

27. Notice under Section 138 of the Act was also sent at the address of Kailash Apartments under certificate posting and there is nothing on record to show that this was not the given address of the petitioner No. 2, as in counter reply petitioner has stated that no summon has ever been served on petitioner No. 2 at this address, which is the residence of Col. Vikram Kumar. If petitioner No. 2 has not been residing at this address then how she says that no summons have been served upon this address. Since notice of demand under Section 138 of the Act at the address of Kailash Apartments have been sent under certificate of posting, presumption will arise that the notice has been received by the addressee.

28. The next question which arises for consideration is if the above two addresses are not of the petitioners, then how petitioner No. 2 has come to know about the pending of complaint under Section 138 of the Act in the Court of Magistrate.

29. The summon in this case was sent by the trial court for 22nd September, 2006 to the petitioners at both the above addresses, that is, at Pushpanjali as well as of Kailash Apartments. As far as summons sent at the Kailash Apartments is concerned the same has been refused by the petitioner and as per report of the process server on 7th August, 2006, he visited at this premises for effecting service, then a woman came out from the house and the process server made inquiries from her who took the summons inside the house and later came back after sometime and told that petitioner No. 2 is at Mumbai and refused to receive the summons and that lady told herself as the mother of the petitioner. The guard on duty informed the process server that the petitioner is inside the house and the process server then affixed the summon and copy of the complaint.

30. According to the report of process server, the summons for appearance in the Court of Magistrate was refused by petitioner No. 2 and it was served by pasting for 22nd September, 2006.

31. In the counter reply filed by the petitioners, it has been stated that the counsel for petitioner appeared to conduct the proceedings of the complaint case on 22nd September, 2006 on the last minute telephonic direction of petitioners given from Mumbai, where the petitioner No. 2 received an anonymous phone call on her mobile phone informing her that a criminal case was fixed for hearing against her in the court of Shri Ajay Pandey the Metropolitan Magistrate, Tis Hazari Court, Delhi.

32. As per this fact, it is through the anonymous call petitioner No. 2 has come to know about the pending of the present complaint criminal case in the court of Magistrate.

33. In the application under Section 205 Cr.P.C. for exemption of personal appearance filed on that very date i.e. 22nd September, 2006 before the court Metropolitan Magistrate, the counsel for the petitioner who is the applicant, states that the above named alleged accused have not been served with the summons issued by this learned court and do not know the facts of the case but they have come to know that a hearing in some case against them has been fixed for today, before this Hon'ble Court.

34. It was further stated that accused No. 2 i.e. petitioner No. 2 is in Mumbai from where she has telephonically instructed and authorised her to find out the matter and if need be to appear before the court to attend the hearing on behalf of both the above alleged accused.

35. In this application for exemption filed on behalf of the present petitioner, it has nowhere been mentioned that the petitioner received any anonymous telephone call on her mobile phone about the pendency of the criminal case in the court of Magistrate, which is the story put forwarded in the counter reply by the petitioner in this Court.

36. Nevertheless, it is a matter of evidence to be proved by petitioner No. 2, that she received an anonymous call on her mobile phone and came to know about the pendency of the criminal case against her and this issue has to be gone into by the trial court.

37. So, prima-facie, looking into the facts of the case it stands clearly established that notice under Section 138 of the Act was duly served upon the petitioner in accordance with the provisions of law.

38. As far as this plea of the petitioner that in the complaint, respondent has not mentioned that the cheque in question was issued to respondent No. 2 in discharge of legally enforceable liability is concerned, it has been laid down by the Apex Court in the case of K.N. Beena v. Muniyappan 2001 Crl.L.J. 4745 (S.C) that:

Under Section 139 of the Negotiable Instruments Act the Court has to presume, in a complaint under Section 138, that the cheque had been issued for a debt or liability. There is, therefore, no requirement that the complainant must specifically allege in the complaint that there was a subsisting liability. The burden of proving that there was no existing debt or liability was on the respondents. This they have to discharge in the trial.

39. Under these circumstances, it is not a case of interference by this Court with the summoning order at this stage as disputed question of facts cannot be gone into these proceedings and it would be open to the petitioners to show that they have not received any such notice, for which evidence is needed.

40. The present petition is thus misconceived and it is dismissed with costs of Rs. 5,000/-

41. Petitioner is directed to deposit this costs of Rs. 5,000/- with trial court within a period of one month, failing which the trial court shall recover the same in accordance with law.

42. Trial court record be sent back forthwith.