MANU/UP/0774/2017

Equivalent Citation: 2017(2)AC R1914, 2017ALLMR(C ri)545, III(2017)BC 30(All.), 2017(2)C rimes362(All.)

IN THE HIGH COURT OF ALLAHABAD

Application U/S. 482 No. 27137 of 2009
Decided On: 21.04.2017
Appellants: Kuber Sharma
Vs.
Respondent: State of U.P. and Ors.
Hon'ble Judges/Coram:
Mukhtar Ahmad, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Abhinav Prasad
For Respondents/Defendant: Pooja Srivastava, Govt. Advocate
ORDER
Mukhtar Ahmad, J.
1. This application under Section 482 Cr.P.C. has been moved by the applicants with a
prayer to quash the summoning order dated 11.05.2009 passed in complaint case No.
3893 of 2008 (Pramod Saxena Vs Kuber Sharma) under Section 138 N.I. Act Police
Station Civil Lines District Rampur. Further proceedings of the case are also prayed to
be stayed.
2. Facts giving rise to this application in a nut shell are that a complaint bearing No.
3891 of 2008 under Section 138 and 142 N.I. Act was filed by opposite party No. 2
Pramod Saxena, alleging that applicant Kuber Sharma agreed to sell his house to the
complaint for a sale consideration of Rs. 7,50,000/- out of which Rs. 7,00,000/- were
paid as earnest money but later on it was found that property was mortgaged with the
State Bank of India so money was returned by Kuber Sharma through a cheque
bearing No. 523671 for Rs. 7,00,000/- lakh in favour of complaint on 05.10.2007.
That cheque was deposited by Pramod Saxena for encashment in bank on 26.02.2008
but the same was dishonored on account of insufficient fund and information to this
effect was given to him on 28.02.2008. Thereafter, a legal notice was sent by Pramod
Saxena through his Advocate on 13.03.2008 by registered post with acknowledgment,
(UPC) and through courier as well. It was further submitted that Kuber Sharma tried to
avoid the service of notice sent through post but ultimately the notice sent through
courier was served personally upon him on 25.04.2008. The proof of delivery of
courier was provided to the complaint on 26.04.2008, but in compliance of the notice
no payment was made. Thereafter a written complaint was filed in the court on
31.05.2008. Complainant examined herself under Section 200 Cr.P.C. and deposited
original cheque, postal receipt, bank memo UPC receipt copy of notice etc.
3. Learned C.J.M. Rampur after considering the evidence available on record, came to
the conclusion that there was prima facie evidence for proceedings under Section 138
of N.I. Act and summoned accused applicant Kuber Sharma for facing trial vide order
dated 11.05.2009. Assailing that order the present application has been preferred.
4 . Heard Mr. Abhinav Prasad learned counsel for the applicant, Ms. Pooja Srivastava

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 learned counsel for opposite party No. 2 learned A.G.A. for State and considered the
record available before the Court.
5. Learned counsel for the applicant submitted that no offence is made out against him
as it has not been established that notice was served upon applicant. It is vehemently
argued that as per complaint, notice dated 13.03.2008 was sent through registered
post, (UPC) as well as through courier service but it is said that notice through courier
service was served upon applicant on 25.04.2008 which prima facie seems to be
unacceptable as for such a long period i.e., from 13.03.2008 to 25.04.2008 the notice
was kept by courier service provider. In ordinary course it should have been served
within 2 or 3 days. It is also stated that service of notice through courier service is not
permissible and in that event if the notice dated 13.03.2008 is taken into consideration
then in ordinary course it ought to have been served hardly within a week. If the
service is presumed sufficient on 20.03.2008 then cause of action shall arose after
expiry of 15 days i.e., 04.04.2008 and in this situation the complaint was to be filed
within one month thereafter i.e., upto 03.05.2008, but the present complaint has been
filed on 31.05.2008 which is barred by limitation but the learned Trial Court has not
considered this aspect in correct perspective and has passed the summoning order in a
very slip shod manner and thus arrived at a wrong conclusion, which is liable to be
quashed by this Court. Reliance has been placed on Deepak Kumar vs. State of U.P.
and other MANU/UP/1847/2006 : 2006 (8) ADJ 427.
6. Learned A.G.A. and Ms. Pooja Srivastava learned counsel for opposite party No. 2
have denied these arguments. It is submitted that all the three modes were adopted by
the complainant to serve the legal notice i.e., through registered post, UPC and courier
service. Though applicant managed to avoid service of notice sent through post but
notice sent through courier service was served personally on 25.04.2008 so complaint
filed on 31.05.2008 is well within limitation period and learned Magistrate rightly
summoned the applicant for facing the trial.
7 . For appreciating the arguments it is apt to extract the ingredients for making an
offence under Section 138 N.I. Act, which provides as under:-
Dishonour of cheque for insufficiency, etc., of funds in the account.--Where
any cheque drawn by a person on an account maintained by him with a banker
for payment of any amount of money to another person from out of that
account for the discharge, in whole or in part, of any debt or other liability, is
returned by the bank unpaid, either because of the amount of money standing
to the credit of that account is insufficient to honour the cheque or that it
exceeds the amount arranged to be paid from that account by an agreement
made with that bank, such person shall be deemed to have committed an
offence and shall, without prejudice to any other provisions of this Act, be
punished with imprisonment for [a term which may be extended to two years],
or with fine which may extend to twice the amount of the cheque, or with
both: Provided that nothing contained in this section shall apply unless--
(a) the cheque has been presented to the bank within a period of six
months from the date on which it is drawn or within the period of its
validity, whichever is earlier;
(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

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 (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.
8. On a careful analysis of the above sections, it is seen that its main part creates an
offence when cheque is returned by the bank unpaid for any of the reasons mentioned
therein. It is manifest that a competent court can take cognizance of a written
complaint of an offence under Section 138 N.I. Act if it is filed within one month of the
date on which cause of action arises under clause (c) of the proviso to Section 138
N.I. Act. In the light of the provisions quoted above, it may be formulated as under.

9. The primary question for consideration is as to whether the mode of service of legal
notice under Section 138 N.I. Act is confined to registered post only and service by
courier is not permissible? Section 138 of N.I. Act does not prescribe any mode for
giving of the demand notice by the payee or holder of the cheque. The aforesaid
issued was dealt in M/S. Sil Import, Usa Vs. M/S. Exim Aides Silk Exports
MANU/SC/0312/1999 : AIR 1999 SC 1609. The Hon'ble Supreme Court while dealing
with the issue focused on technology advancement and its applicability in law
observed that the notice envisaged in clause (b) of the proviso to section 138
transmitted by fax would be compliance with the legal requirement.
10. In Suo Moto vs. Registrar High Court of Gujarat MANU/GJ/0147/2002 : AIR 2002
Gujarat 388, the High Court of Gujarat, in view of the law of the Hon'ble Supreme
Court in M/S. Sil Import (supra) has held that applying the rule of construction as
suggested by Supreme Court observed in para No. 7 that there may be other modes of
service also, such as service by courier, by fax messages, or service by electronic male
service or service of litigant directly etc. and there is nothing to exclude or prohibit the
other modes of service. At this juncture it would be proper to mention that in Deepak
Kumar case (supra) cited by learned counsel for the revisionist the question of
presumption of service of notice sent through courier service was dealt by Single
Judge of this Court but here in the matter in land the P.O.D. is there. Further in view
of the law cited above the courier service may be mode of serving the legal notice, as
such it does not support the applicant.
11. We may also consider that the entire purpose of requiring the notice is to give an
opportunity to the drawer to pay the cheque amount within 15 days of the service of
the notice and thereby free himself form the penal consequences of Section 138. In
Vinod Shivappa vs. Nanda Belliappa MANU/SC/8187/2006 : (2006) 6 SCC 456 the
Hon'ble Supreme Court discussed the detailed.
If a notice is issued and served upon the drawer of the cheque, no controversy
arises. Similarly if the notice is refused by the addressee, it may be presumed
to have been served. This is also not disputed. This leaves us with the third
situation where the notice could not be served on the addressee for one or the
other reason, such as his non availability at the time of delivery, or premises

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 remaining locked on account of his having gone elsewhere etc. etc. If in each
such case the law is understood to mean that there has been no service of
notice, it would completely defeat the very purpose of the Act. It would then
be very easy for an unscrupulous and dishonest drawer of a cheque to make
himself scarce for sometime after issuing the cheque so that the requisite
statutory notice can never be served upon him and consequently he can never
be prosecuted. There is good authority to support the proposition that once
the complainant, the payee of the cheque, issues notice to the drawer of the
cheque, the cause of action to file a complaint arises on the expiry of the
period prescribed for payment by the drawer of the cheque. If he does not file
a complaint within one month of the date on which the cause of action arises
under clause (c) of the proviso to Section 138 of the Act, his complaint gets
barred by time. Thus, a person who can dodge the postman for about a month
or two, or a person who can get a fake endorsement made regarding his non
availability can successfully avoid his prosecution because the payee is bound
to issue notice to him within a period of 30 days from the date of receipt of
information from the bank regarding the return of the cheque as unpaid. He is,
therefore, bound to issue the legal notice which may be returned with an
endorsement that the addressee is not available on the given address.
We cannot also lose sight of the fact that the drawer may by dubious means
manage to get an incorrect endorsement made on the envelope that the
premises has been found locked or that the addressee was not available at the
time when postman went for delivery of the letter. It may be that the address
is correct and even the addressee is available but a wrong endorsement is
manipulated by the addressee. In such a case, if the facts are proved, it may
amount to refusal of the notice. If the complainant is able to prove that the
drawer of the cheque knew about the notice and deliberately evaded service
and got a false endorsement made only to defeat the process of law, the Court
shall presume service of notice. This, however, is a matter of evidence and
proof. Thus even in a case where the notice is returned with the endorsement
that the premises has always been found locked or the addressee was not
available at the time of postal delivery, it will be open to the complainant to
prove at the trial by evidence that the endorsement is not correct and that the
addressee, namely the drawer of the cheque, with knowledge of the notice had
deliberately avoided to receive notice.
(emphasis supplied)
12. One can also conceive of cases that where a well intentional drawer may have
inadvertently missed to make necessary arrangements for reasons beyond his control,
even though he genuinely intended to honour the cheque drawn by him. The law treats
such lapses induced by inadvertence or negligence to be pardonable, provided the
drawer after notice makes amends and pays the amount within the prescribed period.
It is for this reason that clause (c) of proviso to Section 138 provides that section shall
not apply unless the drawer of the cheque fails to make the payment within 15 days of
the receipt of the said notice. To repeat, the proviso is meant to protect honest drawer
whose cheque may have been dishonored for the fault of others, or who may have
genuinely wanted to fulfill their promise but on account of inadvertence or negligence
failed to make necessary arrangement for the payment of the cheque. The proviso is
not meant to protect unscrupulous drawers who never intended to honour the cheques
issued by them, it being a part of their modus operandi to cheat the unsuspecting
persons.
1 3 . It may also be added that in the matter in hand address given in the notice,

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 envelop, UPC and courier service (POD) as well as in complaint and in this application
too is the same, hence it cannot be denied that notice was not sent to correct address.
In HDFC Bank Ltd. Vs. Amit Kumar Singh the Delhi High Court has observed in para 25
that these days it is not difficult for a person sending a notice by registered post or by
courier or by speed post to obtain a certificate of delivery from the postal department
or the courier service agency. That certificate will indicate the status of the delivery;
whether the notice did receive the notice or refused or that the notice has left the
address or is not available. It would be for the court to be satisfied whether this would
amount to service of notice.
14. In view of the discussion made above considering the proof of delivery of courier
service (P.O.D.) it comes out that after service of legal notice on 25.04.2008 the
drawer of the cheque i.e., applicant failed to make payment of the demanded amount
of money to the opposite party No. 2 within 15 days of the receipt of notice and cause
of action arose on next following day. The complaint has been filed within one month
from the accrued of cause of action, thus is well within the period of limitation.
15. Consequently application is devoid of merit and hereby dismissed.
1 6 . Learned Magistrate is directed to decide the matter expeditiously without
providing any adjournment to any of the parties unless if it is found very necessary.
Copy of this order be also transmitted to the learned trial Court through office.
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