Pankaj Naqvi ORDER
Pankaj Naqvi, J.
Heard Ms. Swati Agrawal, learned counsel for the applicant and the learned A.G.A.
This application under Section 482 Cr.P.C. Cr.P.C. challenges the order dated 24.4.2015 passed by the Addl. Chief Judicial Magistrate (Court No. 3), Gorakhpur in Complaint Case No. 4989/2011, summoning the applicant under Section 138 of the N.I. Act.
1. The case set up in the complaint of O.P. No. 2 is that the applicant issued a cheque dated 8.2.2011 for Rs. 32 lacs in favour of the complainant/O.P. No. 2, which upon presentation before her bankers, was reported to be dishonoured, followed by a registered statutory notice dated 28.4.2011, which went uncomplied with, hence the complaint was filed on 21.6.2011, with the affidavit of O.P. No. 2 and that of his witness and the registered notice dated 28.4.2011. The learned Magistrate on 24.4.2015 relying upon the complaint, statements and other materials, prima facie found the applicant involved in the commission of an offence under Section 138 of the N.I. Act, proceeded to summon him.
2. It is submitted by the learned counsel for the applicant that in the absence of any disclosure in the complaint as regards the date of service of notice, the complaint did not disclose any cause of action, thus the same was not maintainable. She also submitted that the complaint was barred by limitation.
3. Learned A.G.A. would submit that the complaint along with appended materials did disclose sufficient cause of action. He, on the strength of the judgment of the Apex Court in the case of Ajeet Seeds Ltd. v. K. Gopala Krishnaiah, MANU/SC/0630/2014 : 2014 (12) SCC 685, contends that once a registered notice is sent under Proviso (b) to Section 138 of the Act to the drawer of the cheque, presumption of due service of the notice would stand attracted both under sub-section 114 of the Evidence Act and under Section 27 of the General Clauses Act and it is not the requirement of law to state in the complaint that the notice was served on a particular date as notice is deemed to have been served with the addressee or he is deemed to have the knowledge of the notice unless and until contrary is proved at the stage of evidence. He also submits that the complaint is not barred by limitation.
4. The Proviso (b) & (c) appended to Section 138 of the Act lays down the conditions which are to be complied with before a complaint under Section 138 of the Act could be filed, which are quoted hereunder:--
"138. Dishonour of cheque for insufficiency, etc., of funds in the account.-
Provided that nothing contained in this section shall apply unless--
(a) ..........
(b) the payee or the holder in due course of the cheque, 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 thirty 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.
Explanation.-- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.
5. A perusal of Clauses (b) & (c) to the proviso would indicate that before a complaint could be filed, the payee or the holder in due course of the cheque, as the case may be, is to make a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid and the drawer of such cheque fails to make payment of the said amount to the payee or as the case may be, to the holder in due course within 15 days of the receipt of notice.
6. The Apex Court in the case C.C. Alavi Haji v. Palapetty Muhammed and another, MANU/SC/2263/2007 : 2007 (6) SCC 555, held as under:--
"10. It is, thus, trite to say that where the payee dispatches the notice by registered post with correct address of the drawer of the cheque, the principle incorporated in Section 27 of the G.C. Act would be attracted; the requirement of Clause (b) of proviso to Section 138 of the Act stands complied with and cause of action to file a complaint arises on the expiry of the period prescribed in Clause (c) of the said proviso for payment by the drawer of the cheque. Nevertheless, it would be without prejudice to the right of the drawer to show that he had no knowledge that the notice was brought to his address.
11. However, that the referring Bench was of the view that this Court in Vinod Shivappas case (supra) did not take note of Section 114 of Evidence Act in its proper perspective. It felts that the presumption under Section 114 of the Evidence Act being a rebuttable presumption, the complaint should contain necessary averments to raise the presumption of service of notice; that it was not sufficient for a complainant to state that a notice was sent by registered post and that the notice was returned with the endorsement out of station; and that there should be a further averment that the addressee-drawer had deliberately avoided receiving the notice or that the addressee had knowledge of the notice, for raising a presumption under Section 114 of Evidence Act.
12. Therefore, the moot question requiring consideration is in regard to the implication of Section 114 of the Indian Evidence Act, 1872 insofar as the service of notice under the said proviso is concerned. Section 114 of the Indian Evidence Act, 1872 reads as follows:
Section 114- Court may presume existence of certain facts -The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events human conduct and public and private business, in their relation to the facts of the particular case.
Illustrations
The Court may presume -
(f) That the common course of business has been followed in particular cases.
....
13. According to Section 114 of the Act, read with illustration (f) thereunder, when it appears to the Court that the common course of business renders it probable that a thing would happen, the Court may draw presumption that the thing would have happened, unless there are circumstances in a particular case to show that the common course of business was not followed. Thus, Section 114 enables the Court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. Consequently, the court can presume that the common course of business has been followed in particular cases. When applied to communications sent by post, Section 114 enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. But the presumption that is raised under Section 27 of the G.C. Act is a far stronger presumption. Further, while Section 114 of Evidence Act refers to a general presumption, Section 27 refers to a specific presumption. For the sake of ready reference, Section 27 of G.C. Act is extracted below:
27. Meaning of service by post -
Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression served by post, whether the expression serve or either of the expressions give or send or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
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 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. (Vide Jagdish Singh v. Natthu Singh: MANU/SC/0313/1992 : AIR 1992 SC 1604; State of M.P. v. Hiralal and Ors.: MANU/SC/1388/1996 : (1996) 7 SCC 523 and V. Raja Kumari v. P. Subbarama Naidu and Anr.: MANU/SC/0937/2004 : (2004) 8 SCC 774. 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 the 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 G.C. 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 emphasis that the complaint 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 on 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."
7. In essence what the Apex Court held is that once a notice under Proviso (b) to Section 138 of the Act is dispatched in writing by a registered post to the drawer of the cheque, then a presumption under Section 114 of the Evidence Act would come into play and the court may presume existence of certain facts regard being had to the common course of natural events, human conduct, public and private business in their relation to the facts of the particular case and by virtue of illustration (f) that common course of business has been followed in particular cases, which essentially in reference to a written communication, would enable the court to presume that in the common course of natural events, the notice would have been delivered to the addressee. Not only this, a presumption under Section 27 of the General Clauses Act, which presumes that service of notice has been effected when it is sent to the correct address by registered post also arises. Thus, once it is alleged that a registered notice was sent to the address of the drawer of the cheque, it shall be deemed to have been served to the addressee or the addressee is deemed to have the knowledge of the notice. Obviously both these presumptions under Section 114 of the Evidence Act and that of Section 27 of the General Clauses Act are rebuttable which the drawer is entitled to rebut at the stage of evidence by such cogent evidence as he may deem fit, but it would be a sufficient compliance of law, if only mode and manner of issuance of notice is indicated in the complaint.
8. Recently the Apex Court in the case of Ajeet Seeds Ltd. (supra), had an occasion to examine a similar issue wherein the High Court quashed the complaint at the stage of summoning on the premise that there are no recitals to demonstrate that the registered notice under Section 138 of the Act was served on any specific date, and the High Court observed that there was no proof of evidence of service of notice or return of notice unserved and there was also no averment in the complaint regarding the same. The Apex Court while approving the law in the case of C.C. Alavi Haji (supra), held that a service of notice could be presumed both under Section 114 of the Evidence Act and Section 27 of the General Clauses Act and that it is not necessary to aver in the complaint that inspite of the notice returned unserved, it is deemed to have been served or that the addressee is deemed to have the knowledge of the notice unless and until contrary is proved by the addressee at the stage of evidence.
9. Thus the contention that the complaint must aver the actual date of service of notice, stands rejected.
10. The Court finds that the complaint did contain the date of issuance of registered notice dated 28.4.2011. The mere fact that it did not contain the date of receipt of information from the bank regarding the return of cheque as unpaid would not be of much consequence as the said date, i.e. 25.4.2011 was reflected in paragraph 7 of the notice, which is pleaded in the complaint.
11. The contention that the registered notice was received on 5.5.2011 cannot be accepted at this stage when only prima facie case for summoning is to be examined.
No other plea is urged.
The application lacks merit and is dismissed.
However, observations made hereinabove would not prejudice the case of the applicant/accused when the trial court adjudicates the issue on merits, as present observations are limited only to examine the correctness/validity of the summoning order dated 24.4.2015.
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