Ram Babu vs State Of U.P. And Another

Heard Sri Rakesh Kumar Dubey, learned counsel for the applicant, Sri Vidya Kant Tripathi, learned counsel for O.P. No.2 and the learned A.G.A.

This application under Section 482 Cr.P.C has been filed for quashing the proceedings of Complaint Case No.83/2014 (Mohd. Riyaz vs. Ram Babu), under Section 138 of the N.I. Act, P.S. Bekanganj, Kanpur Nagar, pending in the court of Metropolitan Magistrate-II, Kanpur Nagar.

It is submitted by learned counsel for the applicant that in the absence of any disclosure of the date of service of the notice in the complaint, the complaint itself was not maintainable and secondly no cognizance could have been taken on a complaint which was pre-mature. He relied upon the judgments of the Apex Court in Yogendra Pratap Singh vs. Savitri Pandey, (2014) 10 SCC 713 and that of Subodh S. Salaskar. vs. Jay Prakash M. Shah and another, 2008 (13) SCC 689.

Learned counsel for the complainant and the learned A.G.A have opposed the submissions on the ground that at the stage of summoning, only prime facie case is to be examined, which is made out.

The first submission is no longer res integra as the Apex Court in the case C.C. Alavi Haji v. Palapetty Muhammed and another, 2007 (6) SCC 555, held as under:- 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: AIR 1992 SC 1604; State of M.P. v. Hiralal and Ors.: (1996) 7 SCC 523 and V. Raja Kumari v. P. Subbarama Naidu and Anr.: (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.

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.

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 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.

Recently the Apex Court in the case of Ajeet Seeds Ltd. v. K. Gopala Krishnaiah, 2014 (12) SCC 685, 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.

Thus, at the stage of summoning, it is not the requirement of law that the date of service of statutory notice is to be disclosed in the complaint. The only requirement is that the complaint must aver the mode and manner of issuance of notice. The complaint alleges that the registered notice was issued on 5.12.2013, a presumption of due service can be made. Requirement of law is complied with. Whether the notice was actually served or not, is an issue which can be considered only at an appropriate stage?

Before meeting the 2nd contention as to the validity of cognizance on a pre-mature complaint, it would be apposite to quote paragraphs- 35 & 36 in the judgment of Yogendra Pratap Singh (supra), on which reliance is placed by learned counsel for the applicant. 35. Can an offence under Section 138 of the NI Act be said to have been committed when the period provided in Clause (c) of the proviso has not expired? Section 2 (d) of the Code defines ''complaint''. According to this definition, complaint means any allegation made orally or in writing to a Magistrate with a view to taking his action against a person who has committed an offence. Commission of an offence is a sine qua non for filing a complaint and for taking cognizance of such offence. A bare reading of the provision contained in Clause (c) of the proviso makes it clear that no complaint can be filed for an offence under Section 138 of the NI Act unless the period of 15 days has elapsed. Any complaint before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint at all in the eye of law. It is not the question of prematurity of the complaint where it is filed before expiry of 15 days from the date on which notice has been served on him, it is no complaint at all under law. As a matter of fact, Section 142 of the NI Act, inter alia, creates a legal bar on the Court from taking cognizance of an offence Under Section 138 except upon a written complaint. Since a complaint filed Under Section 138 of the NI Act before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint in the eye of law, obviously, no cognizance of an offence can be taken on the basis of such complaint. Merely because at the time of taking cognizance by the Court, the period of 15 days has expired from the date on which notice has been served on the drawer/accused, the Court is not clothed with the jurisdiction to take cognizance of an offence Under Section 138 on a complaint filed before the expiry of 15 days from the date of receipt of notice by the drawer of the cheque.

A complaint filed before expiry of 15 days from the date on which notice has been served on drawer/accused cannot be said to disclose the cause of action in terms of Clause (c) of the proviso to Section 138 and upon such complaint which does not disclose the cause of action the Court is not competent to take cognizance. A conjoint reading of Section 138, which defines as to when and under what circumstances an offence can be said to have been committed, with Section 142 (b) of the NI Act, that reiterates the position of the point of time when the cause of action has arisen, leaves no manner of doubt that no offence can be said to have been committed unless and until the period of 15 days, as prescribed Under Clause (c) of the proviso to Section 138, has, in fact, elapsed. Therefore, a Court is barred in law from taking cognizance of such complaint. It is not open to the Court to take cognizance of such a complaint merely because on the date of consideration or taking cognizance thereof a period of 15 days from the date on which the notice has been served on the drawer/accused has elapsed. We have no doubt that all the five essential features of Section 138 of the NI Act, as noted in the judgment of this Court in Kusum Ingots and Alloys Ltd. v. Pennar Peterson Securities Ltd. and Ors. AIR 2000 SC 954 : (2000) 2 SCC 745] and which we have approved, must be satisfied for a complaint to be filed Under Section 138. If the period prescribed in Clause (c) of the proviso to Section 138 has not expired, there is no commission of an offence nor accrual of cause of action for filing of complaint Under Section 138 of the NI Act.

To appreciate the observations made in paragraphs-35 & 36 in Yogendra Pratap Singh (supra), it would be pertinent to consider the context in which the said observations were made. One of the issues involved before the Apex Court, was to the following effect: 1.1 (i) Can cognizance of an offence punishable under Section 138 of the Negotiable Instruments Act 1881 be taken on the basis of a complaint filed before the expiry of the period of 15 days stipulated in the notice required to be served upon the drawer of the cheque in terms of Section 138(c) of the Act aforementioned? And,

The Apex Court was examining as to whether cognizance of an offence under Section 138 of the Act could be taken, even though the 15 day period indicated in the statutory notice had not expired. Against the said backdrop, the Apex Court after examining the ingredients of Section 138 of the Act which inter alia includes issuance of a statutory notice within a month from the date of the reported dishonour of the cheque and a period of 15 days having expired from the date of the receipt of the notice, a complaint under Section 138 of the Act could be filed upto the period of one month and in that context, the Apex Court held that where 15 days statutory period had not expired, the complaint filed before the expiry of 15 days period, would not be maintainable.

Once this is the legal position as regards the maintainability of a complaint filed before the expiry of the 15 day period indicated in the notice, observations made in paragraphs- 35 & 36 in Yogendra Pratap Singh (supra) will have to be read with the issue which was under consideration before the Apex Court. Thus, the bar of cognizance which is referred in paragraphs - 35 & 36 would relate to those cases only where a pre-mature complaint is filed on admitted materials at the stage of summoning, else if the contention of the applicant is accepted, it would not only defeat the purpose and object of the enactment but would run counter to the judgment of the Apex Court in the cases of C.C. Alavi Haji (supra) and Ajeet Seeds (supra), where consistent view has been taken that for the purpose of summoning, what is to be seen is only the mode and manner of the issuance of the notice and not its service. In Yogendra Pratap Singh (supra), the complaint was filed before the expiry of 15 days from the date of receipt of notice, as per the complaint allegations. Thus, the complaint itself was not maintainable on the admitted allegations made in the complaint.

Learned counsel for the applicant also placed reliance on the judgment of Salaskar (supra) to contend that 30 days time ordinarily must be held to be sufficient for service of notice and if that be so, a complaint filed on 6.1.2014 on the basis of notice dated 5.12.2013, was not maintainable. The Court finds that in Vinay Patni vs. State of U.P. and others, 2013(80) ACC 1, this Court held that the period of 30 days taken to effect service in Salaskar (supra) is only the outer limit in a case of presumed service for judging whether the complaint is barred by limitation or not, because in Salaskar (supra), a legal notice dated 17.1.2001 was sent by speed post, whereas the complaint under Section 138 of the Act, was filed on 20.4.2001. Thus, the Apex Court held that the notice dated 17.1.2001 must be deemed to have been served at best within 30 days from the date of issuance thereof, i.e., upto 16.2.2001, whereas it ought to have been filed by 2.4.2001, but the same was filed on 20.4.2001. The decision in the case of Salaskar (supra) would not come to the rescue of the applicant.

Thus on the facts of the present case, a complaint filed on 6.1.2014 on the basis of registered notice dated 5.12.2013, cannot be said to be premature.

No other plea is urged.

The application is dismissed.

However, observations made hereinabove, are made only to examine the correctness of the summoning order, same would not come in the way of the learned Magistrate while adjudicating the issue on merits.