Neelu Mehta vs State & Anr.
2010 Latest Caselaw 579 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+         CRL.M.C. 3013/2009 and Crl.M.A. No. 10181/2009

                            Date of Order: 2nd February, 2010

#    NEELU MEHTA                              ..... Petitioner
!                     Through: Mr. Ramesh Gupta, Sr. Adv. with
                      Mr. Bharat Sharma, Adv.

                      versus

$    STATE & ANR.                             ..... Respondent
!                     Through: Mr. V.K. Ohri and Mr. Akshay
                      Malik, Advs. for R-2 & Mr. Jaideep Malik,
                      APP for State.

*    CORAM:
     HON'BLE MR. JUSTICE V.K. JAIN

     1.     Whether the Reporters of local papers
            may be allowed to see the judgment?       No

     2.     To be referred to the Reporter or not?    No

     3.     Whether the judgment should be            No
            reported in the Digest?


: V.K. JAIN, J. (Oral)

1. This is a petition under Section 482 of the Code of Criminal

Procedure for quashing the complaint filed against her under

Section 138 of Negotiable Instruments Act. The petitioner is

seeking quashing of the complaint primarily on the ground that

it was barred by limitation and there was no proof of service of

notice of demand before the Magistrate, at the time of passing

the summoning order.

2. The petitioner herself has stated in ground (ii) of the

petition that the service of notice was effected on her on 23rd

February, 2009. She has also obtained a certificate from the

Postal Department to the effect that the notice was served upon

her on 23rd February, 2009. The complaint has been filed on 13 th

April, 2009. Admittedly, 10 th April, 2009, 11th April, 2009 and

12th April, 2009 being holidays, the Courts were closed on that

dates. Consequently, the prescribed period of limitation expired

on 13th April, 2009, if computed from 23rd February, 2009, the

date on which the petitioner claims to have received the notice.

3. The learned counsel for the petitioner has referred the

decision of this Court in HDFC Bank Limited vs. Amit Kumar

Singh 160 (2009) Delhi Law Times 478. In the case of HDFC

Bank (Supra), the learned Metropolitan Magistrate has

dismissed the complaint on the ground that there was no proof

of service of notice, alleged to have been issued by the

complainant. A perusal of the judgment would show that the

complainant had averred in the complaint that the notice "was

sent/posted to the accused on 14th January, 2009 by Registered

A.D. Post at his above-stated address as the same was duly

provided time and again." The registered cover, whereby the

notice was sent, was not received back and the complainant

claimed that the notice had been duly served upon the accused,

who despite service of notice, had failed to make payment of the

amount of dishonoured cheque. As noted in para 4 of the

judgment, the question before the learned Metropolitan

Magistrate was, whether it could be said that the legal notice

issued to the drawer of the dishonoured cheque was, in fact,

served on the drawer. After discussion, this Court held:

"To recapitulate, a complainant in a case under Section 138 NI Act has at the pre- summoning stage to satisfy the learned MM that the legal notice in terms of the Section 138 (b) NI Act was in fact "served" on the drawer of the dishonored cheque. If some proof of delivery, or an internet generated or postal delivery report or a signed acknowledgement due card of the drawer, or the unserved cover with the postal endorsement is produced before the learned MM, it will be in the discretion of the learned MM to form an opinion if a presumption of service should be drawn. If the complainant chooses to file an affidavit, the deponent should state that he either went personally and found that the accused was residing at the address or is able to produce some postal certificate or an endorsement by a courier service agency that the accused is in fact residing at the address and yet refusing to accept the notice. If the affidavit merely states that the accused is residing at the address without giving any further documentary proof in support thereof such an affidavit cannot be accepted as satisfying the

requirement of Section 138 (b) read with Section 138 (c) of the NI Act."

4. In the present case, since the petitioner herself admits

having received the notice on 23rd February, 2009, this Court

need not, in exercise of its jurisdiction under Section 482 of the

Code of Criminal Procedure go into the question as to whether

there was sufficient material available before the learned

Metropolitan Magistrate, to show service of notice of demand

upon the petitioner or not. The purpose of issuing a notice to the

drawer of the cheque is to give him an opportunity to avoid

criminal liability, by making payment of the amount of cheque(s).

When the accused herself admits receipt of notice, it cannot be

said that the requisite opportunity was not given to her. The

relief under Section 482 of the Code of Criminal Procedure being

a discretionary relief, the Court would not quash the complaint

on the ground that there was no material before the Magistrate

to show service of notice of demand, when the petitioner herself

admits that she had received the notice on a particular date and

computed from that date, the complaint is within the prescribed

period of limitation. The power under Section 482 of the Code is

to be exercised so as to advance the course of justice and is not

intended to give any unfair advantage to the accused.

I find no merit in the petition and the same is hereby

dismissed.

The Trial Court be sent back.

V.K. JAIN (JUDGE) FEBRUARY 2, 2010/BG