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ALLAHABAD HIGH COURT
Manoj Misra, J.
Vinay Patni —Petitioner
versus
State of U.P. and Anr. —Respondents
Cri. Rev. No. 3154 of 2012
Decided on 19.10.2012
Counsel for the Parties:
For the Petitioner:Ashish Agrawal, Advocate.
For the Respondent:Govt. Advocate, R.P. Dwivedi.
IMPORTANT POINT
Common complaint as well as a common demand notice is not illegal.
Headnote:(i) Negotiable Instruments Act, 1881—Section 138—Criminal Procedure Code, 1973—Sections 202 and 204—Dishonour of cheque—Summoning—At the stage of summoning, Court has only to see whether from averments made in complaint and statement made in support thereof, prima facie case has been made out against accused for proceeding against him—Prima facie case was made out for proceeding against accused/revisionist—When notice is sent by registered post by correctly addressing drawer of cheque mandatory requirement of issue of notice in terms of Clause (b) of proviso to Section 138 stands complied with—At the time of taking cognizance of complaint under Section 138 court is required to be prima facie satisfied that a case under the section is made out and mandatory statutory procedural requirements have been complied with—It is then for drawer to rebut presumption about service of notice— Complaint cannot be thrown out at threshold even if it does not make a specific averment with regard to service of notice on drawer on a given date—If complaint and documents in support thereof disclose that notice was dispatched at address of drawer, then law would raise presumption, though rebuttable, that notice has been served on addressee in due course—What is required for court at stage of issuance of process is to see whether a case has been made out for drawing proceeding against accused—Summoning order cannot be faulted on ground that complaint was premature, particularly, when complaint was filed after 23 days of date of issuance of notice—Revision Petition dismissed. (Paras 11, 13, 15, 16, 20 and 21)
(ii) Negotiable Instruments Act, 1881—Section 138—Criminal Procedure Code, 1973—Sections 219 and 220—Dishonour of cheque—Notice—Though three cheques might have been given separately to complainant but all these cheques were drawn on same account and were in lieu payment of a common loan amount—They were presented for collection on same date through a single account, in manner desired by accused and information of cheques returning unpaid was also received on same date and a common notice of demand was also made—Even if it is assumed that they constituted three separate offences, common trial would not be hit by Section 219 Cr.P.C. inasmuch as number of offences did not exceed three—Common complaint as well as a common demand notice was not illegal. (Para 17)
(iii) Negotiable Instruments Act, 1881—Section 138 and 145—Criminal Procedure Code, 1973—Section 204—Dishonour of cheque—Evidence on affidavit—It is not necessary for complainant to seek for prior permission of court before presenting his affidavit to support his complaint for consideration in enquiry to form an opinion for issuance of process under Section 204 Cr.P.C. (Para 19)
Manoj Misra, J.— I have heard Shri Ashish Agrawal for the revisionist, Shri R.P. Dwivedi for the complainant-opposite party No.2 and the learned AGA for the State.
2. By this revision, the revisionist, who is an accused, has challenged the order dated 21.7.2012 passed by the Special Chief Judicial Magistrate, Agra in Complaint Case No. 220 of 2012, whereby the revisionist has been summoned under Section 138 of Negotiable Instruments Act (hereinafter referred to as ‘NI Act’).
3. The complaint case is that the complainant lent a sum of Rs. 25,00,000 to the revisionist vide pay order No. 172018 dated 17.6.2010, on State Bank of Indore, which was credited to the account of the revisionist. To return the aforesaid amount, the revisionist issued as many as eight cheques of different denominations, drawn on Vijaya Bank, Agra, totaling Rs.20,00,000, in favor of the complaint. Upon presentation for encashment, the cheques returned unpaid. Thereafter, the revisionist requested .the complainant to present them for encashment in such a manner that not more than three cheques were presented at a time. Accordingly, on 19.3.2012, the complainant deposited three cheques, totaling Rs. 5 lacs, for collection through his account at State Bank of India. On 22.3.2012 the collecting bank returned the cheques to the complainant as having returned unpaid for insufficient funds in the drawer’s account. Consequently, on 26.3.2012, the complainant, through his counsel, sent a demand notice to the revisionist under registered cover with acknowledgment due, but no payment was made by the revisionist in spite of expiry of the period of notice. As a result the complaint was filed with the following documents: (i) dishonored cheques; (ii) bank intimation memos; (iii) copy of the demand notice; and (iv) postal receipt.
4. The order sheet of the court below reveals that the complaint was presented before the court on 18.4.2012 and, on 18.4.2012 itself, the court took cognizance and directed for recording of statement under Section 200 CrPC. Thereafter on the basis of the statement of the complainant, made on an affidavit, the court vide order dated 21.7.2012, upon finding a prima facie case against the revisionist, summoned the revisionist under Section 138 N.I. Act.
5. Learned counsel for the revisionist has assailed the summoning order on the following grounds:
(a) that the complaint is completely silent with respect to service of notice of demand on the accused, as is mandatory under clauses (b) & (c) of the proviso to Section 138 N.!. Act, accordingly, no proceeding could be drawn on such a complaint;
(b) that, in the alternative, if it is presumed that the notice dispatched under registered cover would have been served in due course, then the presumption would be that it was served in 30 days from the date of dispatch and since the notice was dispatched on 26.3.2012, therefore, the complaint, which was presented on 18.4.2012, would be premature and as the court took cognizance on 18.4.2012 itself, the cognizance was taken when the offence was not complete, therefore, the subsequent issuance of process was illegal.
(c) that a single demand notice in respect of three separate cheques as well as a common complaint in respect of three separate offences was not legally maintainable and, as such, no proceeding could have been drawn thereupon; and
(d) that the statement of the complainant on an affidavit could not have been relied upon for issuing process inasmuch as there was no application on the part of the complainant to dispense with the requirement of examination in court as was required under sub-section (2) of Section 145 of the N.I. Act.
6. In support of the submission that without specific averment with regard to service of demand notice no proceeding could be drawn on the complaint, the learned counsel for the revisionist placed reliance on the decisions of the Apex Court in the cases of Shakti Travel & Tours v. State of Bihar & Anr.1 and
