Raj Rani vs Vinder Singh

Ajai Lamba, J.—This petition u/s 482 Code of Criminal Procedure, seeks quashing of complaint dated 14.10.2004 (Annexure- P-1) as well as summoning order dated 15.4.2005 (Annexure P-3) whereby the petitioner has been summoned to face trial for commission of an offence u/s 138 read with Section 141 Negotiable Instruments Act, 1881 (for short ''the Act'').

The contention of the learned Counsel for the petitioner is that in the complaint (Annexure P-1) filed by the respondent, there was no specific averment that the notice u/s 138 of the Negotiable Instruments Act was received on any particular date. The only averment contained therein was that the notice was served on the petitioner.

I have considered the contention of the learned Counsel for the petitioner.

A perusal of the complaint (Annexure P-1) shows that it has been averred that the accused was served with the statutory legal notice. Para-6 of the complaint reads as under:

That the accused Was served with the statutory legal notice dated 21.9.04 which was duly sent through Regd. A.D. to the accused at his address and the accused was asked to make the payment within 15 days of the receipt of the notice either himself or through any of his authorized agent or person. But no payment was made by the accused or any of her agent.

In the summoning order (Annexure P-3) on the basis of preliminary evidence, the following has been noticed:

...On receipt of the information, the complainant served legal notice dated 21.9.04 Ex.C-32 asking the accused to make the payment of cheque amount, within a period of fifteen days. The complainant has also produced on record postal receipt Ex. C-4. Complainant stepped into witness box as CW-1 and tendered his affidavit Ex.CA in preliminary evidence and has reiterated the allegations made in the complaint, but accused has not repaid the amount of cheque within the period stipulated in the notice. The complaint has been presented on 16.10.04....

Learned counsel for the petitioner has relied on Dalmia Cement (Bharat) Ltd. v. Galaxy Traders and Agencies Ltd. 2001 (1) R.C.R. (Criminal) 646. Reliance has been placed on Paras 6 and 7 of the judgment, which read as under:

To constitute an offence u/s 138 of the Act the complainant is obliged to prove its ingredients which include the receipt of notice by the accused under 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.

The provision clearly inheres that a demand is required to be made for the payment of the cheque amount by giving a notice in writing to the drawer of the cheque within 30 days of the receipt of information by the drawee from the Bank regarding the return of the cheque as unpaid.

A perusal of the facts of the present case, as noticed above, indicates that it has been specifically pleaded that the accused was served with a statutory legal notice dated 21.9.2004, which was duly sent through Registered A.D. to the accused at her address and the accused Was asked to make the payment. Likewise, the order of summoning also notices that the complainant served a legal notice dated 21.9.2004, Exhibit C-3 asking the accused to make the payment of the cheque. The postal receipt has also been placed on record as Exhibit C-4.

As per the interpretation given by the Hon''ble Supreme Court of India in the case of M/s Dalmia Cement (Bharat) Ltd., it has been held that a payee can send the notice for doing his part of giving the notice. Once it is dispatched, his part is over and the case depends on what the sendee does. In such circumstances, as in the present case, provisions of Section 27 of the General Clauses Act, 1897, come, into play. The judgment does not support the case of the petitioner.

The facts of the present case clearly indicate that the legal notice was sent through Registered A.D. Post, which is an accepted mode of service. Once, the notice was sent by Registered A.D. post, the service shall be deemed to be effected by properly addressing and posting by Registered Post. These facts have not only been alleged but also proved in preliminary evidence. Reference may be made to Section 27 of the General Clauses Act. 1897, which has been reproduced in the judgment of the Hon''ble Supreme Court of India in the case of M/s Dalmia Cement (Bharat) Ltd, reproduced above.

When the facts are read in conjunction with the provisions of Section 27 of the General clauses Act and the judgment of the Hon''ble Supreme Court of India, referred to above, no doubt is left in my mind that the required conditions u/s 138(b) of the Act, have been complied with. It would be for the petitioner-accused to prove facts in regard to receipt of notice, to the contrary, during evidence. A mere technical issue has been raised on account of which I do not find any reason to interfere.

In view of the above, the petition is dismissed.