ALLAHABAD HIGH COURT
Arun Kumar Singh Deshwal, J.
Rajiv Malhotra – Applicant
versus
State of U.P. and Anr. – Opp. Party
Application U/S. 482 No.11995 of 2024
Decided on 6.5.2024

IMPORTANT POINT
(1) Dishonour of cheque – Notice sent through courier service is valid service under Section 138 of N.I. Act – However, presumption of delivery of service of notice under Section 27 of General Clauses Act can be invoked only when notice is sent through registered post and not through courier service.
(2) Recall of order – Though there is no specific provision for recalling order in Cr.P.C., even order of dismissal of complaint for want of prosecution, if order is not passed on merit but dismissed for want of prosecution, then Court has authority to recall its order.
(3) Bouncing of conditional cheque – Even if there is condition that before presentation of cheque, notice should be given to drawer of cheque, even then on bouncing of such conditional cheque, offence under Section 138 N.I. Act will be attracted if no information is given to drawer of cheque.

Headnote:

(A) Criminal Procedure Code, 1973 – Section 362 – Recall of order – Though there is no specific provision for recalling order in Cr.P.C., even order of dismissal of complaint for want of prosecution, if order is not passed on merit but dismissed for want of prosecution, then Court has authority to recall its order even in criminal jurisdiction because it is a procedural recall and not review of order. (Paras 9 and 10)

(B) Negotiable Instruments Act, 1881 – Section 138 – Criminal Procedure Code, 1973 – Section 362 – Dishonour of cheque – Complaint of opposite party No.2 was dismissed in default but subsequently restored by same Court – Proceeding under Section 138 N.I. Act is quasi civil in nature, not strictly criminal in nature and some of provisions of Cr.P.C. have been adopted only for expeditious disposal of complaint under the N.I. Act, but that does not make this proceeding purely criminal proceeding so long as it continues to be summary in nature – All provisions of Cr.P.C. are not strictly applied in proceedings under N.I. Act which is summary in nature – Bar of Section 362 Cr.P.C. will not apply if complaint is dismissed for want of prosecution at initial stage – Even order of dismissal of a complaint for want of prosecution was recalled a long time ago and Court has been proceeding to hear the case, as such, recalling such an order will greatly prejudice complainant. (Para 10)

(C) Negotiable Instruments Act, 1881 – Section 138 – Dishonour of cheque – Summoning order – Bouncing of conditional cheque – Even if there is condition that before presentation of cheque, notice should be given to drawer of cheque, even then on bouncing of such conditional cheque, offence under Section 138 N.I. Act will be attracted if no information is given to drawer of cheque. (Paras 11 and 12)

(D) Negotiable Instruments Act, 1881 – Sections 138, 139 and 94 – General Clauses Act, 1897 – Section 27 – Criminal Procedure Code, 1973 – Section 482 – Dishonour of cheque – Summoning order – Notice under Section 138 N.I. Act can be sent either through post or in electronic form – Option of sending written notice through courier service is not barred under Section 94 N.I. Act – Considering object of N.I. Act, excluding courier service which is faster than registered post will, amount to defeating basic object of N.I. Act – However, until amendment is made under Section 27 of General Clauses Act for including courier service apart from registered post, presumption of service of registered post under Section 27 of General Clauses Act cannot be invoked for notice sent through courier service – Notice of dishonouring of cheque should be given in writing and if it is given in writing then as per Section 94 of N.I. Act, it may be given through post for getting benefit of second part of Section 94 of N.I. Act – If it is duly addressed then despite miscarriage, notice will not be deemed to be invalid – Section 94 of N.I. Act though provides discretion that written notice may be sent through post, it does not mandatorily provides that it should be sent through post – If “may” has been used for public good or advancement of justice by authorizing an authority only then word “may” be read as mandatory and not directory otherwise word “may” shall be treated as enabling provision that permits discretion – In this case, there is no need to invoke presumption under Section 27 of General Clauses Act for deemed service – Prima facie case is made out for presumption under Section 139 N.I. Act – However, applicant can rebut this presumption during trial – Application dismissed. (Paras 14, 15, 16, 17, 18, 22, 26 and 27)

(E) Information Technology Act, 2000 – Sections 13(2) and 87 – Civil Procedure Code, 1908 – Order V Rule 9 – Dishonour of cheque – Service of notice – Process of sending demand notice under Section 138 of N.I. Act is not part of any judicial proceeding but prior to initiation of a judicial proceeding – Notices sent through email and WhatsApp are valid notices for the purpose of Section 138 N.I. Act – For reliability of electronic signatures, electronic record as well as for security, Central Government has already framed rules under 87 of I.T. Act – There is no requirement to frame separate rules for service of notice under I.T. Act. (Paras 24 and 25)

Result: Application dismissed.