Point of Law: Negotiable Instruments – Factum of disputed service of notice requires adjudication on the basis of evidence and the same can only be done and appreciated by the trial court and not by this Court under the jurisdiction conferred by Section 482 Cr.P.C.

JUDGMENT :

1. The present application under Section 482 Cr.P.C. has been filed to quash the entire proceedings of Complaint Case No. 3972 of 2012 (M/s Pal Milk Product Vs. Anil Kumar Goel), under Section 138 of Negotiable Instruments Act, 1881, pending in the Court of the Ist Additional Chief Judicial Magistrate, Meerut.

2. The opposite party no.2 filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') against the applicant in the court of Ist Additional Chief Judicial Magistrate, Meerut with the allegation that Cheque No. 875688 issued by the applicant drawn on State Bank of India for an amount of Rs. 48,96,422/-in favour of M/s Pal Milk Product was presented for encashment at Bank of Baroda, Branch Pallavpuram, District Meerut but it was returned with the remark "fund insufficient" vide memo dated 04.09.2012. On 19.09.2012, a legal notice was sent to the applicant. Neither the said notice nor its acknowledgment due returned. On 02.11.2012, again a legal notice was sent to the applicant. There is a presumption of service of the said notice upon the applicant on 04.11.2012. Despite service of notice, the applicant did not make any payment nor sent any reply.

3. The complaint was filed on 19.11.2012. The learned Magistrate after recording the statement under Sections 200 and 202 Cr.P.C. summoned the applicant vide order dated 04.10.2013, under Section 138 of the Act.

4. Learned counsel for the applicant submits that in the complaint the date of service of notice of demand dated 19.09.2012 on the complainant has not been disclosed and as such, no proceedings under Section 138 of the Act could be drawn against the applicant.

5. Elaborating his submission counsel for the applicant contends that since the date of service of notice dated 19.09.2012 has not been mentioned, from which date the cause of action arose to the complainant to file the present complaint against the applicant cannot be determined.

6. Learned counsel for the applicant has placed reliance on a decision of this Court in the case of Alijan Vs. State of U.P. and another, reported in 2020 (112)ACC 491.

7. It was next contended that even otherwise, the complaint on the basis of the second notice dated 02.11.2012 was also not legally maintainable, under the provisions of the Act.

8. On the other hand, Sri Vikrant Rana, learned counsel for the opposite party no.2, and Sri Nikhil Chaturvedi, learned AGA for the State, submitted that it is not necessary to mention in the complaint that notice of demand was served on the accused on any given date. It is contended that once it is mentioned in the complaint that notice was dispatched under the registered cover, on the address of the accused which has not been stated to be incorrect, there would be a presumption in law with regard to service of notice. The summoning order passed by the Magistrate is legal and just in the eyes of the law and at this stage, only a prima facie case is to be seen and the complaint cannot be thrown at the threshold.

9. As regards the contention of learned counsel for the applicant that the complaint on the basis of second notice dated 02.11.2012 is not maintainable, learned counsel Sri Vikrant Rana submitted that the second notice dated 02.11.2012 is only a reminder notice to the drawer of the cheque and as such the said notice could not be construed as an admission of non-service of first notice by the complainant.

10. Heard Sri Pradeep Kumar Rai, learned counsel for the applicant, Sri Nikhil Chaturvedi, learned AGA for the State and Sri Vikrant Rana, learned counsel for the opposite party no.2.

11. Before proceeding to consider the respective submissions of learned counsel for the parties, it is useful to extract the provisions of Section 138 of the Act.

12. Section 138 of the Act is reproduced hereinbelow:-

“138. Dishonor of cheque for insufficiency, etc., of funds in the accounts:

Where any cheque drawn by a person on an account maintained by him