Anil Kumar Gupta vs Judicial Magistrate and Another

Servesh Kumar Gupta, J.—By way of this criminal miscellaneous application moved u/s 482 Code of Criminal Procedure, the prayer has been made to quash the order of cognizance dated 31.10.2006 passed in the criminal complaint case No. 3002 of 2006, titled as Harpal Singh v. Anil Kumar Gupta. The said complaint was filed in the court of Judicial Magistrate, Roorkee for the offence of Section 138 of the Negotiable Instruments Act, 1881 (here in after to be referred as the Act). The Magistrate, after recording the statement u/s 200 Code of Criminal Procedure and having gone through the papers filed in support of the complaint, took cognizance in the matter and issued the summons to the Petitioner asking him to stand for trial. When the Petitioner did not turn up, then consequentially, the arrest warrants were issued on 13.8.2007 and even thereafter on 13.10.2007. Petitioner, instead of putting his appearance, has filed this petition and procured the stay order, as an interim order, till the petition is disposed of on merits. This Court has now heard the learned Counsel for both the parties and perused the entire material available in file.

2.The facts relevant for consideration of this Court are that Petitioner issued a Cheque worth Rs. 8.00 lacs to Respondent No. 2-Harpal Singh. The said cheque bearing No. 640356 drawn from the Corporation Bank, Begum Bridge Road, Meerut, when submitted by Respondent No. 2 on 8.6.2006, had to be encashed after collection through Punjab National Bank, Roorkee,. The said Cheque also bearing the same date ''8.6.2006''. The same could not be honoured by Corporation Bank, Meerut and it was returned on the same day, i.e. on 8.6.2006 itself with a memo issued by the said Bank. This memo, along with the dishonoured cheque, was received in the Punjab National Bank sometime after 8.6.2006 and in turn, Punjab National Bank, Ramnagar, Roorkee, annexing its own memo dated 30.8.2006, sent it to Respondent No. 2 informing him regarding the said dishonour. This dishonour had occurred due to instructions of ''stop payment'' issued by the Drawer of the Cheque- Anil Kumar Gupta (Petitioner).

When this memo of Punjab National Bank was received by Respondent No. 2, he sent a notice u/s 138(b) of the Act on 14.9.2006, but that notice returned ''unserved''. So, after waiting for a month''s time, Respondent No. 2 filed a complaint case No. 3002/2006 against the Petitioner for the offence of Section 138 of the Act, whereupon the impugned order of cognizance has been passed. Feeling aggrieved, this petition has been filed.

It has been contended by learned Counsel for the Petitioner that no notice was served upon his client Anil Kumar Gupta, which is a pre-requisite of Section 138(b) of the Act and without serving the notice, the complaint could not have been filed. Reliance in this regard has been placed in a judgment rendered by Hon''ble the Supreme Court in the case of "M/s Rahul Builders v. M/s Arihant Fertilizers & Chemical and Anr. reported in 2007 (7) Supreme 522". The Hon''ble Apex Court, in that case, has reiterated that unless a notice is served in conformity with Proviso (b) appended to Section 138 of the Act, the complaint petition would not be maintainable.

Per contra, learned Counsel of Respondent No. 2 has placed reliance upon a Three Judges'' Bench of the Hon''ble Apex Court in the case of C.C. Alavi Haji Vs. Palapetty Muhammed and Another, ". In the said case, requirement of giving a notice u/s 138(b) and (c) of the Act has been considered and the Hon''ble Apex Court has also dealt with the eventuality [as existing in the instant case] where a registered notice was sent to it returned ''unserved''. Then the Hon''ble Apex Court has expressed its view that in such an eventuality, notice will be deemed to have been served. It was also held that there is no need to make such averments in the complaint for raising presumption as to service of notice in the said situation, as in view of Section 27 of General Clauses Act and Section 114 of the Indian Evidence Act, once the notice is sent by registered post by correctly addressing the drawer of the cheque, the service of notice is deemed to have been effected. Mandatory requirement of issue of notice in terms of Section 138 proviso (b) stands complied with when the notice is sent in the said manner- However, the drawer can rebut the presumption of service of notice by showing that he had no knowledge that the notice was brought to his address or the address mentioned on the cover was incorrect or the letter was never tendered or the report of the postman was incorrect- Such interpretation would effectuate the object and purpose for which the proviso to Section 138 was enacted.

The Hon''ble Apex Court has further held that where the Drawer of the cheque claims not to have received the notice sent by post, then the course is still open to him after receiving the copy of the complaint with the summons. It was held that he can, within 15 days of the receipt of the summons, make payment of the cheque amount and on that basis submit to the court that the complaint be rejected- He then cannot contend that there was no proper service of notice.

In the instant case, Petitioner has written the same address in his petition, which is mentioned in the complaint. It is sufficient to show that Petitioner resides in Ajad Nagar, Laksar within the territorial jurisdiction of P.S. Laksar, District Haridwar. Town Laksar is such a small town where everybody knows everybody. It has been argued that the notice was sent, not only at the Laksar address but also at the Petitioner''s present address which is C-75, Sector 50, Noida, U.P. Besides, even if the notice was returned unserved, then after receiving summons of the complaint, it was his primary duty to make the payment of the Cheque. But instead of doing so, he filed this petition, when the arrest warrants were issued two times, as a coercive measure to ensure his attendance in the Court. It shows that Petitioner had full knowledge regarding the dispute raised by Respondent No. 2, either by sending the notice of demand or in respect of filing the complaint later.

The precedent relied upon by the Petitioner in the case of M/s Rahul Builders (Supra) does not deal with the eventuality when the notice is deliberately returned by the Drawer of the cheque while the same has been discussed and dealt with by the Larger Bench, including the Chief Justice of India in C.C. Alvi Haji''s case (Supra).

Otherwise also, the powers u/s 482 Code of Criminal Procedure are so inherent as not to be invoked by this Court until and unless there is a grave injustice. These powers should be exercised to prevent the abuse of the process by the court below. In the instant controversy, the situation is rather way around.

In view of the above, this petition has no force, which is liable to be dismissed. Petition is, accordingly, dismissed thereby vacating the interim order dated 30.11.2007 passed by this Court. Concerned lower court be informed accordingly.