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2007(1) Bankmann 316
ALLAHABAD HIGH COURT
Shiv Shankar, J.
Jai Durga Enterprises & Anr — Appellants
versus
State of U.P.& Anr — Respondents
Cri. Misc. Appl. No. 11313 of 2005
Decided on 17.05.2006
For the Applicants:Mr. I.P. Singh and Mr. George Stephen, Advocates.
For the Opposite Parties: Mr. Devendra Saini, A.G.A.
IMPORTANT POINT
It cannot be presumed that there is sufficient service regarding notice sent by UPC and it cannot be taken into account under Section 27 of General Clauses Act that there was sufficient service upon accused applicants.
Headnote:(i) Negotiable Instruments Act, 1881—Section 138—General Clauses Act, 1897—Criminal Procedure Code, 1973—Section 482—Complaint alleging dishonour of cheque—Order passed by Magistrate summoning accused applicants for Trial for offences under Section 138 of NI Act—Application there against under Section 482 CrPC—Plea of accused applicants that they had not received any notice—Validity—Specific mention in complaint that one notice under registered post and one notice under UPC were sent by OP. Party 2 to accused applicants—Notice under registered post was not served upon applicants accused—It is essential that service upon registered notice should be effected in absence of registered post—Held it could not be presumed that there was sufficient service regarding notice sent by U.P.C. —Again it could not be taken into account under Section 27 of General Clauses Act that there was sufficient service upon accused applicants—Denial of receiving any notice by applicants by filing an affidavit—No counter affidavit filed to controvert same—Hence held that there was no sufficient service of legal notice upon applicants accused—Impugned order of Court below held liable to be quashed. (Paras 7 ,8, 10)
(ii) Negotiable Instruments Act, 1881 —Section 138 — Complaint alleging dishonour—Order passed by Magistrate summoning accused applicants for trial—Application there against under Section 482 CrPC—Plea that undated cheque was given by applicants to OP 2 only as security—Held it could be looked only at stage of trial whether cheque was given in blank or in security. (Paras 11)
Result: Application Allowed.
Shiv Shankar, 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 M/s. Indo Auto Mobiles v. M/s Jai Durga Enterprises, Criminal Case No. 1113/2005, under Section 138 of Negotiable Instruments Act. P.S. Kotwali Nagar. District Saharanpur passed by Judicial Magistrate 1st. Saharanpur whereby the applicants 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 complainant was filed by opposite party No. 2 against the applicants. Thereafter, statement of complaint 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 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. The said cheque was in possession of 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 UPC were sent by opposite party No. 2 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 UPC was received by him.
8. Therefore, it appears that the notice sent by registered post was not served upon the applicants accused. It is the admitted case of the complainant respondent No. 2. So far as the notice sent under UPC 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 authorises or requires any document to be served by post, whether the expressio
