The Allahabad High Court has observed in a case for dishonour of cheque under Section 138 of the Negotiable Instruments Act, 1881 that since the complaint case has been pending since 2014, as per the mandate of the Act, the proceedings ought to be concluded within six months
A Single Bench of Justice Vivek Varma recently said that the matter cannot be dismissed merely because of the reason that it does not mention the date on which the demand notice was served upon the alleged defaulter.
In this case, an application under Section 482 CrPC has been filed by Anil Kumar Goel, to quash the entire proceedings of complaint under Section 138 of the Negotiable Instruments Act, 1881, pending in the Court of the First Additional Chief Judicial Magistrate, Meerut.
The respondent no 2 filed a complaint under Section 138 of the Negotiable Instruments Act, 1881, against the applicant in the Court of First Additional Chief Judicial Magistrate, Meerut with the allegation that Cheque issued by the applicant drawn on State Bank of India for an amount of Rs 48,96,422 in favour of Pal Milk Product was presented for encashment at Bank of Baroda, Branch Pallavpuram, District Meerut but it was returned with the remark “fund insufficient” vide memo dated September 4, 2012.
On September 19, 2012, a legal notice was sent to the applicant. Neither the said notice, nor its acknowledgment due returned. On November 2, 2012 again, a legal notice was sent to the applicant.
There is a presumption of service of the notice upon the applicant on November 4, 2012. Despite service of notice, the applicant did not make any payment, nor sent any reply.
The complaint was filed on November 19, 2012. The Magistrate, after recording the statement under Sections 200 and 202 CrPC, summoned the applicant vide order dated October 4, 2013, under Section 138 of the Act.
Counsel for the applicant submitted that in the complaint, the date of service of notice of demand dated September 19, 2012 on the complainant has not been disclosed and as such, no proceedings under Section 138 of the Act could be drawn against the applicant.
Counsel for the applicant has placed reliance on a decision of this Court in the case of Alijan vs State of UP and another, reported in 2020.
It was next contended that even otherwise, the complaint, on the basis of the second notice dated November 2, 2012, was also not legally maintainable, under the provisions of the Act.
Vikrant Rana, Counsel for the opposite party no.2, and Nikhil Chaturvedi, AGA for the State, submitted that it is not necessary to mention in the complaint that notice of demand was served on the accused on any given date. It is contended that once it is mentioned in the complaint that notice was dispatched under the registered cover, on the address of the accused which has not been stated to be incorrect, there would be a presumption in law with regard to service of notice.
The summoning order passed by the Magistrate is legal and just in the eyes of the law and at this stage, only a prima facie case is to be seen and the complaint cannot be thrown at the threshold.
As regards the contention of Counsel for the applicant that the complaint on the basis of second notice dated November 2, 2012 is not maintainable, Counsel Vikrant Rana submitted that the second notice dated November 2, 2012 is only a reminder notice to the drawer of the cheque and as such, the said notice could not be construed as an admission of non-service of first notice by the complainant.
Coming to the facts of the case, the notice having been sent on September 19, 2012, if the presumption of service of notice within a reasonable time is raised, shall be deemed to have been served, at best within a period of 30 days from the date of issuance thereof- September 19, 2012.
The Court stated that the applicant was required to make payment in terms of the said notice within 15 days thereafter,p on or about November 3, 2012. The complaint, therefore, should have been filed by December 3, 2012.
Admittedly, the complaint was filed on November 19, 2012 and therefore, at this stage, it cannot be said that no proceedings under Section 138 of the Act could be drawn against the applicant. The Magistrate at the stage of summoning has only to see whether a prima facie case is made out or not.
The Court said that the factum of disputed service of notice requires adjudication on the basis of evidence and the same can only be done and appreciated by the trial Court and not by the Court under the jurisdiction conferred by Section 482 CrPC.
The judgement of the Court in the case of Alijan (supra) cited by the counsel for the applicant in support of his argument is not good law in view of the judgements of the Supreme Court in C.C.Alavi Haji and (supra), Ajeet Seeds Limited (supra) and Subodh S. Salaskar (supra).
“The second contention raised by counsel for the applicant that the complaint on the basis of second notice dated November 02, 2012 was not maintainable, also cannot be accepted for the reason that the cause of action to file the complaint in question arose under clause (c) of the proviso to Section 138 of the Act from sending of the first notice dated September 19, 2012 and not from the notice dated November 2, 2012, as the second notice dated November 2, 2012 is only a reminder notice to the drawer of the cheque and as such, it cannot be construed as an admission of non -service of first notice by the complainant”, the Court said.
“Hence, in view of the foregoing discussions, both the submissions raised by the Counsel for the applicants are not found to be cogent enough to dislodge the proceedings of Complaint Case No 3972 of 2012, PS Kankarkheda, District Meerut. The application under Section 482 CrPC is devoid of merit and it is, accordingly, dismissed”, the Court ordered.
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“However, since the complaint case, giving rise to the application, has been pending since 2014, as per the mandate of the Act, the proceedings under Section 138 of the Act ought to be concluded within six months.
Accordingly, the Court directed to expedite the hearing of the complaint case by fixing short dates and without granting any unnecessary adjournment to either of the parties.
Source:ILNS