Amar Singh Chauhan ORDER
Amar Singh Chauhan, J.
1. Heard Shri Samit Gopal, learned counsel for the applicant, learned A.G.A. for the State, Shri Pankaj Kumar Asthana, learned counsel for the opposite party No. 2 and perused the material on record.
2. The applicant, Chintamani Jaiswal, through this application moved under Section 482 Cr.P.C., has invoked the inherent jurisdiction of this Court with a prayer to quash the entire proceedings of Criminal Complaint Case No. 773 of 2006 (Naresh Kumar Bansal v. Chintamani Jaiswal), under Section 138 Negotiable Instruments Act, P.S. Shakti Nagar, District Sonbhadra, pending in the court of C.J.M., Sonbhadra and further prayed to stay the proceedings in the aforesaid case.
3. Brief facts which are requisite to be stated for the adjudication of the application are that the complaint was filed by the opposite party No. 2 against the applicant with the allegation that applicant had given two cheques of Rs. 40,000/- each on 19.12.2000 and those cheques were presented for payment in bank on 19.4.2001 but the same was returned with the endorsement that the firm had already been close down and thereby cheques were dishonoured. The complainant had sent two notices to the applicant on 28.4.2001 and 16.5.2001 but he did not receive those notices and were returned unclaimed. After recording the statement under Sections 200 and 202 Cr.P.C. and on being satisfied, the process was issued against the applicant, against which he has filed the criminal revision No. 29/2003 which was dismissed.
4. Feeling aggrieved, applicant came up before this court in the application.
5. It is submitted by learned counsel for the applicant that no notice was sent to the applicant and also never received by the applicant. It is further submitted that the present complaint is not maintainable on the ground that it is time barred. Learned counsel for the applicant relied on Prem Chand Vijay Kumar v. Yashpal Singh and Another, Criminal Appeal No. 651 of 2005 and Neeraj Parekh v. Amit Enterprises, Criminal M.C. No. 1692 of 2011 and Criminal M.A. No. 6147 of 2011, in which it has been held that failure to pay the amount within fifteen days of receipt of demand of notice alone gives rise to a cause of action.
6. Per Contra, learned A.G.A. for the State and Shri Pankaj Kumar Asthana, learned counsel for the opposite party No. 2 contend that the complaint was filed within time as the notice were deemed to be served upon the applicant and said grounds had already been taken in the criminal revision No. 29/2003 by the applicant which was dismissed on merit.
7. Before adverting to the claim of the parties, it is expedient to reproduce the Section 138 of the Negotiable Instruments Act as under:-
Section 138: Dishonour of cheque for insufficiency, etc., of funds in the account.
138. "Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to [two] year, or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless-
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheques, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within fifteen days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice."
8. The scope and ambit of power under section 482 Cr.P.C. has been examined by Hon'ble Apex Court in Union of India v. Prakash P. Hinduja and another, MANU/SC/0446/2003 : AIR 2003 SC 2612, and observed as follows:
"The grounds on which power under Section 482 Cr.P.C. can be exercised to quash the criminal proceedings basically are (1) where the allegations made in the FIR or complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused (2) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused, (3) where there is an express legal bar engrafted in any of the provisions of Code of Criminal Procedure or the concerned Act to the institution and continuance of the proceedings. But this power has to be exercised in a rare case and with great circumspection".
9. In the case in hand, the grounds taken by the applicant are two fold. Firstly, that no notice was ever served upon the applicant nor received by the applicant. Secondly, the complaint is time barred. So far as the service of the notice is concerned, the notice was returned back with the endorsement despite visiting several time and giving information but the recipient did not meet, hence returned which means that notice was returned as unclaimed. In view of Section 27 of The General Clauses Act where the sender has dispatched the notice by post with the correct address written on it, then it can be deemed to have been served upon the sendee unless he proves that it was not really served and that he was not responsible for such non-service but in this case, the notice has been returned unclaimed which deemed to have been served upon the applicant. So far as the second ground that the complaint is time barred is concerned, the notice which was sent by the complainant was returned by the postman by the endorsement dated 26.5.2001 and complaint was filed on 4.6.2001 i.e. well within the period of limitation.
10. The Hon'ble Apex Court also in the case of V. Raja Kumari v. P. Subbarama Naidu and another, [MANU/SC/0937/2004 : 2004 (8) SCC 774] has held that the question whether notice as required under Section 138 of the Negotiable Instruments Act, 1881 has been served to be decided during trial and the complaint ought not to be dismissed at the threshold on the purported ground that there was no proper service of notice or service of the notice has not been disclosed in the complaint.
11. From the perusal, it appears that on the basis of material collected by the Investigating Officer, the prima facie offence is made out, therefore, there is no illegality or irregularity in filing the charge-sheet. Most of the submissions made at the bar relate to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. Only in the cases where Court finds that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order was not correct, this power may be exercised to prevent the abuse of process or miscarriage of justice.
12. However, in view of the above discussion, I find no reason to interfere in the proceedings and, therefore, refuse to quash the proceedings in the aforesaid case.
13. Accordingly, the application is rejected.
14. Interim order, if any, stands vacated.
15. Office is directed to communicate the order to the court concerned.
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