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Yogesh Kumar v/s State of Uttar Pradesh

    Application under Section 482 No. 1824 of 2013

    Decided On, 19 February 2014

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE MANOJ MISRA

    For the Petitioner: Amit Daga, Advocate. For the Respondent: Kameshwar Singh, Advocate.



Judgment Text

Manoj Misra, J.

1. Heard Sri Amit Daga for the applicant; Sri Vinay Mani Tiwari, holding brief of Sri Kameshwar Singh for opposite party no.2; and the learned AGA for the State and perused the record.

2. By the present application under Section 482 Cr.P.C., the applicant has sought for quashing of the proceedings of criminal complaint case no.152/9 of 2012, pending in the Court of Additional Chief Judicial Magistrate, Court No.1, Muzaffarnagar, under Section 138 of Negotiable Instrument Act, relating to police station Chhapar, district Muzaffarnagar.

3. Earlier, by order dated 17th January, 2013, the matter was referred to the Mediation Centre of this Court to explore possibility of a compromise between the parties. Pursuant to the said order, the Mediation Centre has submitted its report dated 16th May, 2013 disclosing that the mediation process was completed, but parties could not arrive at an agreement.

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/>4. In view of the above, the matter has been examined on merits.

5. A perusal of the record reveals that according to the complaint case, the applicant, who is the accused, gave a cheque dated 27th October, 2011 of Rs. 5 lacs to the complainant by way of part consideration for Poplar trees purchased by him. It is alleged that the cheque was deposited in the bank on 7th December, 2011 and the same returned unpaid on 9th December, 2011 with remark 'Payment stopped by the drawer'. It has been alleged that on receipt of the aforesaid information, on 12th December, 2011, a registered notice of demand, through Advocate, was sent by the complainant, which was deliberately got returned by the accused on 20th December, 2011. It has been alleged that despite lapse of period of notice, no payment was made. Accordingly, the complaint has been filed on 12th January, 2012.

6. In support of the complaint, the complainant gave his affidavit, which is admissible under Section 145 of the Negotiable Instrument Act; the original of the cheque; the deposit receipt; the bank memo of return of the cheque; and the original of the receipt of dispatch of the notice of demand, etc. The Court below found that there existed a prima facie case to proceed against the applicant, under Section 138 of Negotiable Instrument Act, summoned the applicant by order dated 6th February, 2012.

7. The only submission advanced by the learned counsel for the applicant is that according to the own case of the complainant, the notice of demand returned back, therefore, it would be deemed that the notice was not served on the accused and, as such, the proceedings under Section 138 of Negotiable Instrument Act are not maintainable.

8. Per Contra, the learned counsel for the complainant submitted that the question of service of notice is a matter to be examined during the course of trial. At this stage, the court has only to see existence of a prima facie case, which is made out from the complaint allegations and the material produced in support thereof. It has been submitted that where the mode and manner of dispatch of notice is disclosed and it is shown that the notice has been dispatched at the correct address by registered post, the law would raise a presumption, though rebuttable, with regard to service. It has been submitted that there is no statement that the notice of demand was not sent on the correct address of the applicant and as, admittedly, the notice of demand was sent by Registered Post A/D on the address of the applicant, a case for presuming service is made out.

9. Having considered the submissions of the learned counsel for the parties, the question that has been raised by the applicant in this case has already been answered by this Court in the case of Vinay Patni v. State of U.P. and another reported in 2013 (1) ACC page 1 where, after considering apex court's decisions, this Court, observed as follows:-

"13. What is, therefore, required to be seen is whether from the aforesaid material a prima facie case was made out for proceeding against the accused-revisionist. In that regard, the submission of the learned counsel for the revisionist is that in absence of a specific averment with regard to the service of notice of demand it cannot be said that a prima facie case was made out. To the contrary, the submission of the learned counsel for the complainant is that once it is alleged in the complaint that the notice of demand was sent under registered cover to the drawer, and the copy of the notice produced on record discloses the address of the accused, whereas the postal receipt on record discloses dispatch under registered speed post, a presumption, though rebuttable, would be raised that the notice reached its destination, under section 27 of the General Clauses Act as well as under illustration (f) to Section 114 of the Indian Evidence Act, 1872. With regards to the necessity of making averment in the complaint that the notice of demand was served on the drawer, the apex court in the case of C.C. Alavi Haji (supra), in paragraphs 14 and 15 of the judgment, observed as follows:

"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 a 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. ...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.

15. Insofar as the question of disclosure of necessary particulars with regard to issue of notice in terms of proviso (b) of Section 138 of the Act, in order to enable the Court to draw presumption or inference either under Section 27 of the GC Act or Section 114 of the Evidence Act, is concerned, there is no material difference between the two provisions. In our opinion, therefore, when the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of Clause (b) of proviso to Section 138 of the Act stands complied with. It is needless to emphasise that the complainant must contain basic facts regarding the mode and manner of the issuance of notice to the drawer of the cheque. It is well settled that at the time of taking cognizance of the complaint under Section 138 of the Act, the court is required to be prima facie satisfied that a case under the said section is made out and the aforenoted mandatory statutory procedural requirements have been complied with. It is then for the drawer to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned in the cover was incorrect or that the letter was never tendered or that the report of the postman was incorrect. In our opinion, this interpretation of the provision would effectuate the object and purpose for which proviso to Section 138 was enacted, namely, to avoid unnecessary hardship to an honest drawer of a cheque and to provide him an opportunity to make amends."

In the case of Indo Automobiles (supra), the apex court, after noticing the judgments in the cases of K. Bhaskaran (supra) as well as V. Raja Kumari (supra), observed: "It is also well settled that once notice has been sent by registered post with acknowledgment due to correct address, it must be presumed that the service has been made effective."

From the observations of the apex court in the decisions noticed above, it is now clear that the complaint cannot be thrown out at the threshold, even if it does not make a specific averment with regard to service of notice on the drawer on a given date. If the complaint and the documents in support thereof disclose that the notice was dispatched at the address of the drawer, then the law would raise a presumption, though rebuttable, that the notice has been served on the addressee in due course. The complaint, however, must contain basic facts regarding the mode and manner of the issuance of notice to the drawer of the cheque."

10. In view of the law noticed above as also the observations of the apex court in C.C. Alavi's case which has been noticed by this Court in Vinay Patni' case, the argument of the learned counsel for the applicant cannot be accepted so as to quash the complaint at the threshold, inasmuch as the complaint clearly discloses the mode and manner of issuance of notice to the drawer of the cheque which, according to the complaint case, was sent under registered cover at the address of the drawer. Whether the same has been served or not that is a matter of trial. The application is, accordingly, dismissed.
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