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2007 (1) Bankmann 195
ALLAHABAD HIGH COURT
Shiv Shankar, J.
Jai Durga Enterprises
& Anr. — Appellants
versus
State of U.P. & Ors. — Opp. Parties
Criminal Misc. Application
No. 11313 of 2005
Decided on 17-5-2006
For the Applicants:Mr. I.P. Singh and Mr. George Stephen, Advocates.
For the Opp. Parties: Mr. Devendra Saini, A.G.A.
IMPORTANT POINT
Where in absence of sufficient service upon registered notice, no prima facie case was made out for offence under Section 138 of Negotiable Instruments Act, 1881 then order summoning accused applicants for trial was held liable to be quashed
Headnote:Negotiable Instruments Act, 1881—Section 138—General Clauses Act, 1897— Section 27—Criminal Procedure Code, 1973—Section 482—Complaint alleging dishonour of cheque by complainant OP No. 2 against applicants—Order passed by Magistrate summoning applicants accused for Trial—Application there against u/s. 482 Cr.PC for quashment of order—Plea of applicants that they had not received any notice from OP 2 as provided under Section 138 of Negotiable Instruments Act—Specific mention in complaint that one notice under registered post and one notice under U.P.C. was sent by Opp. Party No. 2 complainant to accused applicants—Notice under Registered Post was returned by Postman by endorsing false report while notice sent under U.P.C. was received by him—Hence notice sent by Registered Post was not served upon applicants—It is essential that service upon registered notice should be affected in absence of registered post—Hence it could not be presumed that there was sufficient service regarding notice sent by U.P.C. and it could not be taken into account under Section 27 of Act that there was sufficient service upon accused applicants—Prima facie no case made out for offence u/s. 138 in absence of sufficient service upon registered notice—No sufficient service of legal notice upon applicant accused—Impugned order passed by Court below held liable to be quashed.(Paras 7, 8, 10, 11, 13 and 14)
Facts of the case:
1.A Complaint alleging dishonour of cheque was filed by complainant Opp. Party No. 2 against applicants. An order was passed by Magistrate summoning applicants accused for Trial.
2.Present Application u/s. 482 Cr.PC has been filed by applicants for quashment of said order passed by Magistrate. Plea of applicants that they had not received any notice from OP 2 as provided under Section 138 of Negotiable Instruments Act.
3. Findings of the Court: The Court held that there was specific mention in complaint that one notice under registered post and one notice under U.P.C. was sent by OP. No. 2 complainant to accused applicants. Notice under Registered Post was returned by postman by endorsing false report while notice sent under U.P.C. was received by him. Hence notice sent by registered Post was not served upon applicants. It is essential that service upon registered notice should be affected in absence of registered post. Hence held that it could not be presumed that there was sufficient service regarding notice sent by U.P.C. and it could not be taken into account under section 27 of Act that there was sufficient service upon accused applicants. Prima facie no case was made out for offence u/s. 138 in absence of sufficient service upon registered notice. There being no sufficient service of legal notice upon applicant accused. Impugned order passed by Court below held liable to be quashed.
Result: Application allowed.
Shiv Shanker, J.—Application under Section 482, Cr. P.C. has been filed by M/s. Jai Durga Enterprises and Dharmendra Singh, applicants against respondent No. 2, M/s. Indo Automobiles praying to quash the Order dated 2.4.2005 passed in Criminal Case No. 1113/- 2005, M/s. Indo Auto Mobiles v. M/s. Jai Durga Enterprises, under Section 138 of Negotiable Instruments Act, P.S. Kotwali Nagar, District Saharanpur passed by Judicial Magistrate 1st, Saharanpur whereby the appellants/accused were summoned for trial.
2. Brief facts arising out of this application are that opposite party No. 2, M/s Indo Automobiles filed criminal complaint against the above applicants/accused, wherein it was stated that he was manufacturer of tractors under the name of Indo Firm Equipment Limited and supplying tractors to its customers and under the transaction of said tractor the applicants were liable to pay Rs. 13,22,000/- to which the applicants have given a cheque of Rs. 13,22,000/- dated 29.4.2004 to opposite party No. 2/complainant, which was presented by him in his banker and the same was dishonoured by the Bank. After the dishonour of the cheque, opposite party No. 2 gave a notice on 18.5.2004 to the applicants, which was not received by the applicants, then, the complaint was filed by opposite party No. 2 against the applicants. Statement of complainant was recorded by the Court below under Section 200, Cr. P.C. Then, he was summoned for the trial for the offence under Section 138, Negotiable Instruments Act.
3. Feeling aggrieved by it, the applicants/accused filed an objection against the summoning Order, which was rejected by the Court below vide Order-dated 2.4.2005. Thereafter, this application has been filed in this Court.
4. Heard the argument of learned Counsel for both the parties and perused the record.
5. It is contended on behalf of the applicants that they did not receive any notice from opposite party No. 2 as provided under Section 138, Negotiable Instruments Act. It is further contended that the applicants have been given only signed and dated blank cheque to opposite party No. 2 and entry made on the said cheque was done, which was made by opposite party No. 2 himself. It cannot be said that the applicants have given any consent to opposite party No. 2 for collateral security. The said transaction had not only attracted the provision of Section 138 Negotiable Instruments Act but also covered by Section 87 of the Act. The said undated cheque was given by the applicants to respondent No. 2 as security. Therefore, the complaint filed on behalf of opposite party No. 2 was not maintainable and Court below has committed illegality in passing the summoning Order as no prima facie case was made out against the applicants.
6. On the other hand, it is submitted that there is no illegality in passing the impugned Order by the Court below. Therefore, this application is liable to be dismissed.
7. So far as the first ground regarding service of notice is concerned, it has been specifically mentioned in the complaint by opposite party No. 2 that one notice under registered post and one notice under U.P.C. were sent by opposite party complainant/complainant to the accused/applicants on 18.5.2004. Notice under registered post had been returned by the postman by endorsing false report while the notice sent under U.P.C. was received by him.
8. Therefore, it appears that the notice sent by registered post was no served upon the applicants/accused. It is the admitted case of the complainant/respondent No. 2. So far as the notice sent under U.P.C. may be treated as legal notice for the purpose of service.
9. In this regard, it is essential Section 27 of the General Clauses Act, 1897 be produced, which runs as under:
“Meaning of service by post—Where any (Central Act) or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression “service” or either of the expressions “giv
