Punjab-Haryana High Court
M/S Vinod And Sons vs Piyush on 12 December, 2023
Author: Pankaj Jain
Bench: Pankaj Jain
Neutral Citation No:=2023:PHHC:159068
CRM-M-44236-2023 1
2023:PHHC:159068
125 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-44236-2023
Date of decision : 12.12.2023
M/S VINOD AND SONS ....Petitioner
Versus
PIYUSH ....Respondent
CORAM: HON'BLE MR. JUSTICE PANKAJ JAIN
Present : Ms. Nancy Vashistha, Advocate
for the petitioner.
Mr. Sarthak Gupta, Advocate (Amicus Curiae)
PANKAJ JAIN, J. (ORAL)
The present petition has been directed against the order dated
16th of August, 2023 (Annexure P-4) passed by JMIC, Yamuna Nagar
whereby prayer made by the petitioner/complainant in proceedings under
Section 138 of the Negotiable Instruments Act, 1881 seeking permission to
serve the accused through WhatsApp stands declined.
2. Ld. Amicus has provided this Court with the compendium
including provisions in law i.e. provided under the statute/rules, orders as
well as various precedents. The Courts have resorted to alternate mode of
service when it was found difficult to serve the party or when the Courts
were satisfied that the summoned party was evading service. So far as
evasion of the service is concerned, the Code itself provides sufficient
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solution. Provision contained under Section 65 takes care. The same reads
as under :
"65. Procedure when service cannot be effected as before
provided.--If service cannot by the exercise of due diligence be
effected as provided in section 62, section 63 or section 64, the
serving officer shall affix one of the duplicates of the summons
to some conspicuous part of the house or homestead in which the
person summoned ordinarily resides; and thereupon the Court,
after making such inquiries as it thinks fit, may either declare
that the summons has been duly served or order fresh service in
such manner as it considers proper."
3. However in the present case there is a report made by the
process server that the summons issued to accused remained unserved as he
has gone out of country. The same is reflected in the order dated 04.11.2022
placed on record as Annexure P-2.
4. Though on merits no fault can be found with the order
passed by the JMIC declining the prayer to serve the accused through
WhatsApp, however, in the considered opinion of this Court the Trial Court
ought not have closed the doors completely for the alternate mode. E-mail
could be the one. Courts need to be more pragmatic as in trials under
Section 138 of N.I. Act service of accused is pivot to the effective
adjudication. Digital address is the new norm. In case the petitioner is able
to provide correct e-mail address of the accused, the Court should allow the
accused to be served though e-mail. Reliance can be placed upon the
observations made by the Supreme Court in the case of Indian Bank
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Association vs. Union of India, (2014) 5 SCC 590 wherein the Apex
Court issued number of directions to be emulated by the Courts. Relevant
portion of the judgment reads as under :
"DIRECTIONS:
(1) Metropolitan Magistrate/Judicial Magistrate (MM/JM),
on the day when the complaint under Section 138 of the Act is
presented, shall scrutinize the complaint and, if the complaint is
accompanied by the affidavit, and the affidavit and the
documents, if any, are found to be in order, take cognizance and
direct issuance of summons.
(2) MM/JM should adopt a pragmatic and realistic approach
while issuing summons. Summons must be properly addressed
and sent by post as well as by e-mail address got from the
complainant. Court, in appropriate cases, may take the assistance
of the police or the nearby Court to serve notice to the accused.
For notice of appearance, a short date be fixed. If the summons is
received back un-served, immediate follow up action be taken.
(3) Court may indicate in the summon that if the accused
makes an application for compounding of offences at the first
hearing of the case and, if such an application is made, Court
may pass appropriate orders at the earliest.
(4) Court should direct the accused, when he appears to
furnish a bail bond, to ensure his appearance during trial and ask
him to take notice under Section 251Cr.P.C. to enable him to
enter his plea of defence and fix the case for defence evidence,
unless an application is made by the accused under Section
145(2) for re- calling a witness for cross-examination.
(5) The Court concerned must ensure that examination-in-
chief, crossexamination and re-examination of the complainant
must be conducted within three months of assigning the case.
The Court has option of accepting affidavits of the witnesses,
instead of examining them in Court. Witnesses to the complaint
and accused must be available for cross-examination as and
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when there is direction to this effect by the Court."
(emphasis supplied)
5. In view of above, the petitioner is granted liberty to move an
appropriate application before the Trial Court providing e-mail ID of the
accused. In case, such application is moved, this Court is quite sanguine
that the Trial Court shall comply with the directions issued by the Supreme
Court in the case of Indian Bank Association vs. Union of India, (2014) 5
SCC 590 ibid and act accordingly.
6. The petition stands disposed off in above terms.
December 12, 2023 (Pankaj Jain)
Dpr Judge
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
Neutral Citation No:=2023:PHHC:159068
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