Back
2018 Supreme(Raj) 113
IN THE HIGH COURT OF RAJASTHAN AT JAIPUR BENCH
Kanwaljit Singh Ahluwalia, J.
Akash Bhatiya – Appellant
Versus
Rajeev Sharma – Respondent
S.B. Criminal Appeal No. 542 of 2009
Decided On : 02-01-2018
For the Appellant :Mr. Sanjay Singhal, Advocate
For the Respondent:Mr. Sikandar Ali, Advocate
WHERE THE PAYEE DISPATCHES THE NOTICE BY REGISTERED POST WITH CORRECT ADDRESS OF THE DRAWER OF THE CHEQUE, THE PRINCIPLE INCORPORATED IN SECTION 27 OF THE G.C. ACT WOULD BE ATTRACTED; THE REQUIREMENT OF CLAUSE (B) OF PROVISO TO SECTION 138 OF THE ACT STANDS COMPLIED WITH AND CAUSE OF ACTION TO FILE A COMPLAINT ARISES ON THE EXPIRY OF THE PERIOD PRESCRIBED IN CLAUSE (C) OF THE SAID PROVISO FOR PAYMENT BY THE DRAWER OF THE CHEQUE.
Headnote:
NEGOTIABLE INSTRUMENTS ACT, 1881 - SECTION 138 - NOTICE - SERVICE - PROOF - PRESUMPTION - SECTION 27 OF THE GENERAL CLAUSES ACT, 1897 - SECTION 114 OF THE EVIDENCE ACT, 1872 - INTERPRETATION - SUPREME COURT HELD THAT WHERE THE PAYEE DISPATCHES THE NOTICE BY REGISTERED POST WITH CORRECT ADDRESS OF THE DRAWER OF THE CHEQUE, THE PRINCIPLE INCORPORATED IN SECTION 27 OF THE G.C. ACT WOULD BE ATTRACTED; THE REQUIREMENT OF CLAUSE (B) OF PROVISO TO SECTION 138 OF THE ACT STANDS COMPLIED WITH AND CAUSE OF ACTION TO FILE A COMPLAINT ARISES ON THE EXPIRY OF THE PERIOD PRESCRIBED IN CLAUSE (C) OF THE SAID PROVISO FOR PAYMENT BY THE DRAWER OF THE CHEQUE.
Fact of the Case:
COMPLAINT FILED FOR DISHONOR OF CHEQUE - TRIAL COURT ACQUITTED THE ACCUSED ON THE GROUND THAT THE COMPLAINANT HAS FAILED TO PROVE DELIVERY OF STATUTORY NOTICE UPON THE ACCUSED-RESPONDENT.
Finding of the Court:
THE TRIAL COURT ERRED IN NOT CONSIDERING THE JUDGMENT OF THE SUPREME COURT IN C.C. ALAVI HAJI V. PALAPETTY MUHAMMED & ANR. [(2007) 6 SCC 555].
Issues: WHETHER THE TRIAL COURT ERRED IN NOT CONSIDERING THE JUDGMENT OF THE SUPREME COURT IN C.C. ALAVI HAJI V. PALAPETTY MUHAMMED & ANR. [(2007) 6 SCC 555].
Ratio Decidendi: THE SUPREME COURT HELD THAT WHERE THE PAYEE DISPATCHES THE NOTICE BY REGISTERED POST WITH CORRECT ADDRESS OF THE DRAWER OF THE CHEQUE, THE PRINCIPLE INCORPORATED IN SECTION 27 OF THE G.C. ACT WOULD BE ATTRACTED; THE REQUIREMENT OF CLAUSE (B) OF PROVISO TO SECTION 138 OF THE ACT STANDS COMPLIED WITH AND CAUSE OF ACTION TO FILE A COMPLAINT ARISES ON THE EXPIRY OF THE PERIOD PRESCRIBED IN CLAUSE (C) OF THE SAID PROVISO FOR PAYMENT BY THE DRAWER OF THE CHEQUE.
Final Decision: THE IMPUGNED JUDGMENT OF THE TRIAL COURT WAS SET ASIDE AND THE MATTER WAS REMITTED BACK TO THE TRIAL COURT TO PASS A FRESH JUDGMENT TAKING INTO ACCOUNT THE JUDGMENT OF THE SUPREME COURT IN THE CASE OF C.C. ALAVI HAJI (SUPRA).
Key Points: - The payee dispatching the notice by registered post with correct address activates the presumption applicable under the General Clauses Act and satisfies proviso to Section 138, making the cause of action arise on expiry of the period for payment by the drawer. (!) - The notice need not include every possible detail beyond basic facts regarding the mode and manner of issuance; the court can draw presumptions under Section 27 GC Act or Section 114 Evidence Act when notice is properly served by registered post. (!) - The drawer can rebut the presumption by showing lack of knowledge of the notice or incorrect address or non-tendering of the notice, but the object is to avoid hardship to an honest drawer. (!) - If the trial court does not consider a controlling Supreme Court judgment relevant to notice service, it constitutes an error, and the impugned judgment should be set aside and remanded for fresh judgment taking that judgment into account. (!) (!) - The requirement of giving notice before filing a complaint under Section 138 is a statutory departure from general Criminal Law rules; non-receipt does not automatically invalidate service if statutory presumptions apply and the drawer fails to respond within 15 days of summons. (!) - The case was remitted to the trial court to pass a fresh judgment considering the controlling Supreme Court judgment and to do so within three months, with directions for parties to appear. (!) (!)
How to determine if service of notice under Section 138 proviso is valid when sent by registered post to the correct address?
What is the consequence when the trial court fails to consider the Supreme Court judgment on notice service under the Negotiable Instruments Act?
What are the rights of the accused to rebut presumption regarding notice service and knowledge of the notice?
Mr. Kanwaljit Singh Ahluwalia, J.
1. Present appeal has been filed to assail the impugned judgment dated 11.3.2008 rendered by the Court of Additional Chief Judicial Magistrate No.2, Jaipur City, Jaipur.
2. Briefly stated, in a complaint filed, Akash Bhatia had stated that he is engaged in sale of precious and semi-precious stones and in the course of business transactions, sale of stones was made to accused-respondent Rajeev Sharma and he had issued a cheque amounting to Rs. 25,000/- and the said cheque when presented, had bounced.
3. The trial Judge acquitted the accused-respondent on the ground that the complainant has failed to prove delivery of statutory notice upon the accused-respondent.
4. Learned counsel for the complainant-appellant has raised solitary argument to contend that the trial Judge committed a grave error by not noticing the judgment rendered by the Supreme Court in C.C. Alavi Haji v. Palapetty Muhammed & Anr. [(2007) 6 SCC 555]. Learned counsel has drawn attention of this court to Paras-10, 15 and 17 of the judgment rendered in the case of C.C. Alavi Haji's (supra). Paras-10, 15 and 17 of the said judgment reads as under:-
"10. It is, thus, trite to say that where the payee dispatches the notice by registered post with correct address of the drawer of the cheque, the principle incorporated in Section 27 of the G.C. Act would be attracted; the requirement of Clause (b) of proviso to Section 138 of the Act stands complied with and cause of action to file a complaint arises on the expiry of the period prescribed in Clause (c) of the said proviso for payment by the drawer of the cheque. Nevertheless, it would be without prejudice to the right of the drawer to show that he had no knowledge that the notice was brought to his address.
15. Insofar as the question of disclosure of necessary particulars with regard to the issue of notice in terms of proviso (b) of Section 138 of the Act, in order to enable the Court to draw presumption or inference either under Section 27 of the G.C. Act or Section 114 of the Evidence Act, is concerned, there is no material difference between the two provisions. In our opinion therefore, when the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of Clause (b) of proviso to Section 138 of the Act stands complied with. It is needless to emphasis that the complaint must contain basic facts regarding the mode and manner of the issuance of notice to the drawer of the cheque. It is well settled that at the time of taking cognizance of the complaint under Section 138 of the Act, the Court is required to be prima facie satisfied that a case under the said Section is made out and the afore-noted mandatory statutory procedural requirements have been complied with. It is then for the drawer to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the cover was incorrect or that the letter was never tendered or that the report of the postman was incorrect. In our opinion, this interpretation of the provision would effectuate the object and purpose for which proviso to Section 138 was enacted, namely, to avoid unnecessary hardship to an honest drawer of a cheque and to provide him an opportunity to make amends.
17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable
