ALLAHABAD HIGH COURT
Pankaj Naqvi, J.
Smt. Mohini Verma —Petitioner
versus
State of U.P. & Ors. —Respondents
Crl. Misc. W. P. No.830 of 2013
Decided on 30.9.2015

IMPORTANT POINTS
(1) At the stage of summoning, it is not the requirement of law that the date of service of statutory notice is to be disclosed in the complaint. The only requirement is that the complaint must aver the mode and manner of issuance of notice.
(2) Merely because at the time of taking cognizance by the Court, the period of 15 days has expired from the date on which notice has been served on the drawer/accused, the Court is not clothed with the jurisdiction to take cognizance of an offence Under Section 138 on a complaint filed before the expiry of 15 days from the date of receipt of notice by the drawer of the cheque.
(3) A complaint filed on 12.8.2009 on the basis of registered notice dated 18.7.2009, cannot be said to be pre-mature.
(4) Where four cheques in question are in a seratum, i.e. 644155 - 158, which were presented in a single account of the complainant/payee on 10.7.2009, all dishonoured on 14.7.2009, for want of funds, followed by a combined registered statutory notice dated 18.7.2009, a single complaint would be maintainable as all the cheques were forming a part of the same transaction, in view of same date of dishonour of cheques, followed by a single combined notice.

Headnote:(i) Negotiable Instruments Act, 1881 — Section 138(i)(b) — Petition for quashing complaint and summoning order on ground of absence of specific averment in complaint as to the date of service of notice — Once it was alleged that a registered notice was sent to the address of drawer of cheque it shall be deemed to have been served to addressee or addressee is deemed to have knowledge of notice — Of course presumption was rebuttable which drawer was entitled to rebut at the stage of law if only mode and manner of issuance of notice was indicated in complaint — Complaint could not be quashed.

       Held: In essence what the Apex Court held is that once a notice under Proviso (b) to Section 138 of the Act is dispatched in writing by registered post to the drawer of the cheque, then a presumption under Section 114 of the Evidence Act would come into play and the court may presume existence of certain facts regard being had to the common course of natural events, human conduct, public and private business in their relation to the facts of the particular case and by virtue of illustration (f) that common course of business has been followed in particular cases, which essentially in reference to a written communication, would enable the court to presume that in the common course of natural events, the notice would have been delivered to the addressee. Not only this, a presumption under Section 27 of the General Clauses Act, which presumes that service of notice has been effected when it is sent to the correct address by registered post also arises. Thus, once it is alleged that a registered notice was sent to the address of the drawer of the cheque, it shall be deemed to have been served to the addressee or the addressee is deemed to have the knowledge of the notice. Obviously both these presumptions under Section 114 of the Evidence Act and that of Section 27 of the General Clauses Act are rebuttable which the drawer is entitled to rebut at the stage of evidence by such cogent evidence as he may deem fit, but it would be a sufficient compliance of law, if only mode and manner of issuance of notice is indicated in the complaint.

       Thus, at the stage of summoning, it is not the requirement of law that the date of service of statutory notice is to be disclosed in the complaint. The only requirement is that the complaint must aver the mode and manner of issuance of notice.

       The complaint alleges that the registered notice was issued on 18.7.2009, a presumption of due service can be made. Requirement of law is complied with. Whether the notice was actually served or not, is an issue which can be considered only at an appropriate stage? (Paras 4, 6 & 7)

       (ii) Negotiable Instruments Act, 1881 — Section 138 — Petition for quashing complaint and summoning order as quashing particularly in absence of specific averment in complaint as to date of service of statutory notice — Statutory notice was sent by regd post on 18.7.2009 and complaint was filed on 12.8.2009 — Whether complaint could be held to be premature, liable to be quashed ? No.

       Held: Once this is the legal position as regards the maintainability of a complaint filed before the expiry of the 15 day period indicated in the notice, observations made in paragraphs- 35 & 36 in Yogendra Pratap Singh (supra) will have to be read with the issue which was under consideration before the Apex Court. Thus, the bar of cognizance which is referred in paragraphs - 35 & 36 would relate to those cases only where a pre-mature complaint is filed on admitted materials at the stage of summoning, else if the contention of the applicant is accepted, it would not only defeat the purpose and object of the enactment but would run counter to the judgment of the Apex Court in the cases of C.C. Alavi Haji (supra) and Ajeet Seeds (supra), where consistent view has been taken that for the purpose of summoning, what is to be seen is only the mode and manner of the issuance of the notice and not its service. In Yogendra Pratap Singh (supra), the complaint was filed before the expiry of 15 days from the date of receipt of notice, as per the complaint allegations. Thus, the complaint itself was not maintainable on the admitted allegations made in the complaint.

       Learned counsel for the applicant placed heavy reliance on the judgment of Salaskar (supra) to contend that 30 days time ordinarily must be held to be sufficient for service of notice and if that be so, a complaint filed on 12.8.2009 on the basis of notice dated 18.7.2009, was not maintainable. The Court finds that in Vinay Patni vs. State of U.P. and others, 2013(80) ACC 1, this Court held that the period of 30 days taken to effect service in Salaskar (supra) is only the outer limit in a case of presumed service for judging whether the complaint is barred by limitation or not, because in Salaskar (supra), a legal notice dated 17.1.2001 was sent by speed post, whereas the complaint under Section 138 of the Act, was filed on 20.4.2001. Thus, the Apex Court held that the notice dated 17.1.2001 must be deemed to have been served at best within 30 days from the date of issuance thereof, i.e., upto 16.2.2001, whereas it ought to have been filed by 2.4.2001, but the same was filed on 20.4.2001. The decision in the case of Salaskar (supra) would not come to the rescue of the applicant. (Paras 10 & 11)

       (iii) Negotiable Instruments Act, 1881 — Section 138 — Criminal Procedure Code, 1973 — Section 220 — Single complaint regarding dishonour of four cheques — As per complaint allegations cheques were issued by accused as a part of single transaction — Single complaint was not prohibited.

       Held: If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.

       A perusal of the above provision manifests that if one series of act are so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.

       The four cheques in question are in a seratum, i.e. 644155 - 158, which were presented in a single account of the complainant/payee on 10.7.2009, all dishonoured on 14.7.2009, for want of funds, followed by a combined registered statutory notice dated 18.7.2009, a single complaint would be maintainable as all the cheques were forming a part of the same transaction, in view of same date of dishonour of cheques, followed by a single combined notice. The cause of action to file the complaint would accrue only upon expiry of 15 days period, from the date of service of notice when the offence stands committed. The proximity of time, place and continuity indicates that the offences were committed in the same transaction. Thus, a single complaint is not prohibited. Learned counsel for the applicant could not demonstrate any prejudice/miscarriage which could be occasioned with single trial. (Paras 12 to 14)

       (iv) Negotiable Instruments Act, 1881 — Section 138 and 142 — Complaint for offence of dishohnour of cheque — Territorial jurisdiction of Court — Impact of judgment in Dasrath Roop Singh Rathor has been nullified with promulgation of Negotiable Instruments (Amendment Ordinance) No.6 of 2015 on 15.6.2015. (Paras 17 & 18)

       Result: Petition dismissed.