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2021 Supreme(All) 1279
IN THE HIGH COURT OF ALLAHABAD
KRISHAN PAHAL, J.
Dhiraj Gupta - Applicant
Versus
State of U.P. and Another - Opposite Parties
Application U/s 482 No. 6709 of 2009
Decided On : 15-12-2021
For the Applicant : Anil Mullick.
For the Opposite Party :Govt. Advocate.
Point of Law : Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
Headnote:
Constitution of India,1950 - Article 226 - Criminal Procedure Code,1973 - Sections 482, 200, 156(1) and 155(2) - Negotiable Instruments Act - Section 138and 94 - General Clauses Act, 1897 - Section 17 - Dishonor of cheque - Inherent jurisdiction - Alleged that applicant had borrowed - Complainant for his business and issued a post-dated cheque to tune Meerut of Punjab National Bank - Complainant had deposited cheque and the same was bounced with remark “funds insufficient - Demand notice was sent by registered post to applicant within a limitation period of 15 days - Affidavit was filed regarding the statement recorded under Section 200 Cr.P.C - Applicant herein is said to have not returned the borrowed money even after sending the notice and cheque having bounced - Learned Magistrate has summoned the applicant vide order.
Finding of the Court:
Inherent powers should not be exercised to stifle the legitimate prosecution and it should not be exercised at drop of pen - Present application does not fall under any of categories enumerated under Section 482 Cr.P.C - Court opinion that the service of notice through registered post was proper and there was no rebuttal evidence to show that complainant had deliberately and intentionally sent legal notice to some wrong address or that applicant had resided at some other place - Applicant must have the knowledge of cheque having bounced from his bank statement also - Receipt of notice or its service on applicant is a matter of fact which can only be seen by Trial Court - Impugned order warrants no interference.
Result: Application dismissed
JUDGMENT :
1. Heard Sri Anil Mullick, learned counsel for the applicant, learned AGA for the State-respondent and also perused the material available on record.
2. By means of the present application under Section 482 Cr.P.C., the applicant has invoked inherent jurisdiction of the Court with a prayer to quash the summoning order dated 02.09.2008 passed by Additional Civil Judge (Junior Division)/Judicial Magistrate, Court No.2, Meerut, in Case No.2126 of 2008, Imran Khan Vs. Dhiraj Gupta, under Section 138 of Negotiable Instruments Act, Police Station- Sadar Bazar, District- Meerut.
3. Facts, in brief, giving rise to the present application are that the complaint under Section 138 of Negotiable Instruments Act has been filed by the complainant Imran Khan wherein it has been alleged that the applicant Dhiraj Gupta had borrowed Rs.60,000/- from the complainant for his business and issued a post-dated cheque no.903149 dated 25.02.2008 to the tune of Rs.60,000/- of Gym Khana Branch, Meerut of Punjab National Bank. The complainant had deposited the cheque on 29.02.2008 and the same was bounced with the remark “funds insufficient”. A demand notice was sent by registered post to the applicant within a limitation period of 15 days. The receipt of said notice is said to have not returned to the complainant. An affidavit was filed regarding the statement recorded under Section 200 Cr.P.C. The applicant herein is said to have not returned the borrowed money even after sending the notice and the cheque having bounced. The learned Magistrate has summoned the applicant vide order dated 02.09.2008. It has been argued that the impugned order dated 02.09.2008 has been passed without application of mind and is a cryptic order. Learned counsel for the applicant has vehemently argued that there is no receipt regarding service of notice sent on behalf of the complainant/opposite party no.2.
4. Learned AGA has opposed the application and stated that the order impugned passed by the learned Magistrate is a detailed and speaking order. The order mentions the crux of the offence, the statement of the witnesses and the documents relied thereupon, therefore, the application deserves to be dismissed.
5. Learned AGA has also contended that in view of Section 94 of the Negotiable Instruments Act, 1881, the service of notice cannot be termed as insufficient.
6. For ready reference, Section 94 of the Negotiable Instruments Act, 1881 reads as under:-
“Notice of dishonour may be given to a duly authorized agent of the person to whom it is required to be given, or, where he has died, to his legal representative, or, where he has been declared an insolvent, to his assignee; may be oral or written; may, if written, be sent by post; and may be in any form; but it must inform the party to whom it is given, either in express terms or by reasonable intendment, that the instrument has been dishonoured, and in what way, and that he will be held liable thereon; and it must be given within a reasonable time after dishonour, at the place of business or (in case such party has no place of business) at the residence of the party for whom it is intended.
If the notice is duly directed and sent by post and miscarries, such miscarriage does not render the notice invalid.”
7. Section 17 of the General Clauses Act, 1897, reads as under:-
“Substitution of functionaries
(1) In any [Central Act] or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of indicating the application of a law to every person or number of persons for the time being executing the functions of an office, to mention the official title of the officer at present executing the functions, or that of the officer by whom the functions are commonly executed.
(2) This section applies also to all [Central Acts] made after the third day of January, 1868, and to all Regulations made on or after the fourteenth January, 1887.”
8. In the case of Ajeet Seeds Limited Vs. K. Gopala Krishnaiah, rep
