2020 Supreme(All) 953

IN THE HIGH COURT OF ALLAHABAD
RAM KRISHNA GAUTAM, J.
Rajanikant Mani Tripathi – Appellant
Versus
State of U.P. and Another – Respondents
Criminal Revision No. 929 of 2020
Decided On : 17-11-2020

Point of law: 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 to be rejected. A person who does not pay within 15 days of receipt of the summons from the court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the GC Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran case if the “giving of notice” in the context of Clause (b) of the proviso was the same as the “receipt of notice” a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act.”

Headnote:

General Clauses Act, 1897 – Section 27 – Code of Criminal Procedure, 1973 – Sections 397, 401 – Negotiable Instrument Act – Section 138 – Dishonour of cheque – Criminal revision under Section 397/401 of Cr.P.C. has been filed by Rajanikant Mani Tripathi, against State of U.P. and Another, against judgment and order, passed by Prescribed Authority/Additional Court (Negotiable Instrument Act), Gorakhpur, whereby Criminal Case, under Section 138 of N.I. Act, P.S. Kotwali, District Gorakhpur, was dismissed, with this contention that learned trial Judge failed to appreciate facts placed on record. Order was against the provision of N.I. Act. – A notice to opposite party No. 2 was sent and as per provision of Section 27 of General Clauses Act, presumption of its service, in case of its non return back to sender, is to be drawn after thirty days and after thirty days, it may be presumed that notice has been served upon the addressee and if within fifteen days of same, amount is not paid, then cause of action arises. – Applicant-revisionist has sent notice of dishonour of cheque to opposite party No. 2, drawer of cheque on 18.12.2017, it was a registered notice which had yet not been received back and presumption of service may be taken by the Court on 17.1.2018 i.e. after thirty days. – This complaint for offence punishable under Section 138 of N.I. Act was filed before Court, which is within thirty days form the date of arising of cause of action – But the Court failed to consider above provision of General Clauses Act and thereby rejected complaint on the ground of delayed filing. – It was an order apparently erroneous on the face of it. – Hence, this revision with prayer for setting aside impugned judgment and order of trial Court of Additional Court No. 1 (Negotiable Instrument Act) Gorakhpur, in Complaint Case, under Section 138 of N.I. Act, Rajanikant Mani Tripathi vs. Kiran Yadav and remit the matter to Court below for further hearing in the case.

Finding of the court:

Meaning, presumption of service of notice within a reasonable time is to be raised. It should be deemed to have been served at best within a period of thirty days from the date of issuance thereof. – Meaning thereby, the reasonable period for presumption of service may be up to 30 days from date of its issuance. – Hence, in present case, notice issued was said to be served and it was issued on 18.12.2017. – It was sent through speed post and it was deemed to be sufficiently served up to 17.1.2018 and within fifteen days payment was not made. – Then after within thirty days this complaint was filed. – Hence, apparently this complaint was not time barred. The presumption made by trial Judge for service of notice is not in accordance with principles laid by Apex Court, as above in Subodh S. Salaskar's case (supra) and in Dr. Vinod Shivappa vs. Nanda Belliappa, AIR 2006 SC 2179 as well as Section 27 of General Clauses Act, 1897. – Hence, on the basis of statement recorded under Section 200 and documentary evidence given under Section 202 of Cr.P.C. offence punishable under Section 138 of N.I. Act was, prima facie, made out. – But learned trial Court has failed to appreciate facts and law, has presumed service of notice within 20.12.2017 and has dismissed complaint. – This order is apparently erroneous on the face of it and is under mis-exercise of jurisdiction of learned trial Court.

Result: – Revision Allowed