ALLAHABAD HIGH COURT
Manoj Misra, J.
Vinay Patni —Revisionist
versus
State and Anr. —Opp. Parties
Cri. Revision No. 3154 of 2012
Decided on 19.10.2012

IMPORTANT POINT
Complaint cannot be thrown out at the threshold even if it does not make a specific averment with regard to service of notice on the drawer on a given date. If the complaint and the documents in support thereof disclose that the notice was dispatched at the address of the drawer, then the law would raise a presumption, though rebuttable, that the notice has been served on the addressee in due course.

Headnote:(i) Negotiable Instruments Act, 1881—Section 138—Offence of dishonour of cheque—Petition for quashing order of cognizance and summoning on ground of absence of averment in complaint that statutory demand notice was served upon accused—Complaint cannot be thrown out at threshold even if it did not make specific averment with regard to service of notice on drawer on a given date.

       Held: From the observations of the Apex Court in the decisions noticed above, it is now clear that the complaint cannot be thrown out at the threshold even if it does not make a specific averment with regard to service of notice on the drawer on a given date. If the complaint and the documents in support thereof disclose that the notice was dispatched at the address of the drawer, then the law would raise a presumption, though rebuttable, that the notice has been served on the addressee in due course. The complaint, however, must contain basic facts regarding the mode and manner of the issuance of notice to the drawer of the cheque.

       Coming to the facts of the instant case, the complainant in his complaint has made the necessary averment with regard to the mode and manner of the issuance of notice. The copy of the notice disclosing the address of the drawer was on record and the postal receipt disclosed dispatch of notice by registered speed post to the drawer. Whether the notice was actually served or not is a matter to be examined at a later stage in the trial. The complaint averments further disclose that the notice of demand was dispatched within 30 days of receipt of information by the complainant regarding return of the cheques as unpaid. Therefore the contention of the learned counsel for the revisionist that the complaint was defective in absence of a specific averment with regard to service of notice is not acceptable inasmuch as in the complaint, the mode and manner of the issuance of notice has been given, which, coupled with the document mentioned above, would raise a presumption, though rebuttable, that the notice has been served on the drawer. Accordingly the satisfaction of the court below with regards to existence of a prima facie case against the accused, to proceed against him under Section 138 of the N.I. Act, cannot be faulted on this ground. (Paras 15 & 16)

       (ii) Negotiable Instruments Act, 1881—Section 138—Petition for quashing summoning order of offence on ground that complaint was pre-mature—Date of dispatch of notice was 28.3.2012 and complaint was filed on 18.4.2012—Motive was sent by regd. speedy past and addressee was located in same district—Notice must have reached within a few days—Complaint could not be said prima facie to be pre-mature.

       Held: To examine the weight of the second contention of the learned counsel for the revisionist that the complaint should be treated as premature, it would be useful to recapitulate the complaint averments. In the complaint, the date of dispatch of the notice is given as 26.3.2012. The complaint does not indicate the date of service of the notice. From the documents enclosed with the complaint it appears that the notice was dispatched under registered speed-post. There is no dispute that the addressee was also located within the district of dispatch. In the given circumstances, in view of the observations made in paragraph No.23 in Subodh S. Salaskar’s case (supra), it can be accepted, at this stage, that the notice must have reached the notice within a few days, as it was dispatched under speed post. Since the complaint was filed after about 23 days from the date of dispatch of the notice, after excluding the 15 days period of notice, there would still remain a margin of about 7 clear days for the service of the notice. Accordingly, at this stage, the complaint cannot be thrown out as premature inasmuch as it is always open for the complainant to prove that the notice was served within those 7 days. The contention of the learned counsel for the revisionist that Subodh S. Salaskar’s case lays as a rule that where presumption of service is to be drawn then 30 days period should be taken as the time to effect service, cannot be accepted, inasmuch as in Subodh S. Salaskar’s case, the apex court was examining the outer time limit taken to effect service in a case of presumed service for the purpose of judging whether the complaint was barred by limitation. At the stage of issuance of process, it is not necessary for the court to record satisfaction that the evidence so led before it, is sufficient to record conviction. What is required for the court at the stage of issuance of process is to see whether a case has been made out for drawing proceeding against the accused. (Para 17)

       (iii) Negotiable Instruments Act, 1881—Section 138—Criminal Procedure Code, 1973—Section 219—Single complaint regarding three cheques dishonoured—Maintainability—All three cheques were drawn in single transaction and were presented on one date and single demand notice was issued—Complaint suffered no illegality. (Para 19)

       Result: Petition dismissed.