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MADHYA PRADESH HIGH COURT
B.D. Rathi, J.
Vijay Kumar Gupta v. Pankaj Sharma
Miscellaneous Criminal Case No.1079 of 2015 (Gwalior) : against the order dated 22.1.2015, passed by revisional Court, Special Judge, Gwalior in Criminal Revision No.467/14;
Decided on 8.4.2015.
Held : After taking into consideration the facts of the case and on perusal of the registered demand notice, it is clear that notice was returned with an endorsement that ”Addressee left the place” in first turn but ultimately when notice of private compliant was issued by the trial court, it came back with a different endorsement that “petitioner went outside”. When bailable warrant was issued, petitioner appeared before the Court. In para 5 of the complaint, it was stated that the accused deliberately evaded receipt of registered demand notice. It is therefore only a deliberate avoidance of the notice on the part of the accused to escape from the liability which cannot be entertained. So, the things are very clear and the Courts below have not committed any illegality to understand the purport of a valid notice as contemplated under section 138(b) of the Act.
[Para 9
It all in one breath clearly shows about constructive service of notice. Even otherwise the very purpose of the Act cannot be thwarted by simply refusing the notice. In view of the settled position of law, this Court is of the clear view that deliberate evasion of receipt of registered notice would amount to constructive service of notice.
(2) Criminal P.C., 1973 -- S.482 -- Negotiable Injstruments Act, 1881 -- S.138(b) -- after notice complaint under section 138(9b) -- isisuance of demand notice -- prima facie proved -- objection about non-service of notice rejected -- revision against such order also rejected -- in such circumstances -- petition under section 482 is not entertainable -- withoput providing opportunity of adducing evidence to both parties -- at this stage -- entire proceedings of private complaint -- cannot be quashed -- liberty granted to accused for raising objection about non-service of notice before trial Court. [Para 11
¼1½ ijdzkE; fyf[kr vf/kfu;e] 1881 & /kkjk 138¼[k½ & mica/k ds v/khu ifjokn ls iwoZ & ek¡x lwpuk&i= & fyf[kr :i esa nsdj ;k rkehy ;k Hkstuk & ls vfHkizsr & pSd ds ys[khoky dks ek¡x lwpuk&i= jftLVªh jlhnh Mkd }kjk Hkstk x;k & bl i`”Bkadu ds lkFk okil fd;k x;k & fd izsf”krh fuokl&LFkku NksM+ x;k gS & U;k;ky; }kjk ifjokn dk tkjh fd;k x;k lwpuk&i= & fHkUu i`”Bkadu ds lkFk okil fd;k x;k fd izsf”krh ckgj x;k gS & tc tekurh; okjaV tkjh fd;k x;k & vfHk;qDr U;k;ky; ds le{k mifLFkr gqvk & ;g lwpuk dh vkUof;d rkehy dh dksfV esa vkrk gS & fupys U;k;ky;ksa }kjk lwpuk dh rkehy u gksus dh vkifr lgh gh [kkfjt dh xbZ gSA vfHkfu/kkZfjr % izdj.k ds rF;ksa ij fopkj djus ,oa jftLVªhd`r ek¡x lwpuk&i= ds voyksdu ds i’pkr~] ;g Li”V gS fd izFke ckj lwpuk&i= bl i`”Bkadu ds lkFk okil fd;k x;k fd ^^izsf”krh fuokl&LFkku NksM+ x;k gS** fdarq varr% tc U;k;ky; }kjk O;fDrxr ifjokn dk lwpuk&i= tkjh fd;k x;k] ;g fHkUu i`”Bkadu ds lkFk okil fd;k x;k fd ^^;kph ckgj x;k gS**A tc tekurh; okjaV tkjh fd;k x;k Fkk] ;kph U;k;ky; ds le{k mifLFkr gqvk FkkA ifjokn ds iSjk 5 esa] ;g dFku fd;k x;k Fkk fd vfHk;qDr tkucw> dj jftLVªhd`r ek¡x lwpuk&i= izkIr djus ls cprk jgkA blfy, vfHk;qDr dh vksj ls lwpuk dh VkyeVksy dsoy nkf;Ro ls cpus dh gS ftls xzg.k ugha fd;k tk ldrkA bl izdkj ekeyk cgqr Li”V gS fd fupys U;k;ky;ksa us tSlk fd vf/kfu;e dh /kkjk 138¼[k½ ds v/khu ifjdfYir oS/k lwpuk&i= ds vfHkizk;% dks le>us esa dksbZ voS/krk ugha dh gSA ;g lc lwpuk dh vkUof;d rkehy gksuk Li”Vr% n’kkZrk gSA vU;Fkk Hkh lk/kkj.kr% lwpuk ls bUdkj }kjk vf/kfu;e ds ;FkkFkZ mn~ns’; dks O;FkZ ugha fd;k tk ldrkA fof/k dh lqLFkkfir fLFkfr ds n`f”Vdks.k esa bl U;k;ky; dh Li”V jk; gS fd tkucw> dj jftLVªhd`r lwpuk&i= izkIr djus esa VkyeVksy djuk lwpuk dh vkUof;d rkehy gksus dh dksfV esa gksxkA ¼2½ naM izfdz;k lafgrk] 1973 & /kkjk 482 & ijdzkE; fyf[kr vf/kfu;e] 1881 & /kkjk 138¼[k½ & lwpuk ds i’pkr~ /kkjk 138¼[k½ ds v/khu ifjokn & ek¡x lwpuk&i= tkjh fd;k tkuk & izFken`”V~;k lkfcr & lwpuk dh rkehy u gksus ds fo”k; esa vkifr [kkfjt dh xbZ & ,sls vkns’k ds fo:} iqujh{k.k Hkh [kkfjt fd;k x;k & ,slh ifjfLFkfr;ksa esa & /kkjk 482 ds v/khu ;kfpdk xzg.k ;ksX; ugha & nksuksa i{kdkjksa dks lk{; izLrqr djus dk volj iznku fd, fcuk & bl izdze ij & izkbosV ifjokn dh laiw.kZ dk;Zokgh & vfHk[kafMr ugha dh tk ldrh & vfHk;qDr dks fopkj.k U;k;ky; ds le{k lwpuk dh rkehy u gksus ds fo”k; esa vkifr mBkus dh Lora=rk iznku dh xbZA ¼iSjk 11½
Rathi, J. -- 1. The instant petition under section 482 of the Code of Criminal Procedure (for short “the Code”) has been filed by the petitioner having been aggrieved by the order impugned dated 20.1.2015 passed by the revisional Court in Criminal Revision No.467/14 whereby the order dated 15.12.2014 passed by the JMFC, Gwalior in Criminal Case No.5069/2014 was maintained.
2. As per the facts of the case, one private complaint was filed by the respondent-Pankanj Sharma against the petitioner Vijay Kumar Gupta alleging commission of offence under section 138 of the Negotiable Instruments Act (for short “N.I. Act”). After appearance of the petitioner, one application was preferred y him before the trial Court on 3.11.2014 contending that in this case demand notice has not been served upon the petitioner-accused and therefore in the absence of service of notice, the complaint could not have been entertained by the court nor could any cognizance under the Act for the alleged offence have been taken. Said application was dismissed from the Court of trial Magistrate vide order dated 15.12.2014. Against said rejection order dated 15.12.2014, the petitioner preferred Criminal Revision No.467/14 before the Special Judge, Gwalior which came to be dismissed vide the impugned order, hence, this petition before us.
3. Learned counsel for the petitioner contended that both the orders passed by the Courts below are against the facts on record and are liable to be set aside. By inviting attention of this Court on the ambit of the provisions contained in section 138 of the N.I. Act it is contended that the offence will be deemed to have been made out only when the drawer of the cheque fails to make the payment within the specified period of receipt of the notice. Therefore to make a payment of the amount of dishonoured cheque giving of notice in writing is mandatory. Where no such notice making demand for payment is served upon the drawer as contemplated under the provisions of section 138(b) of the Act then in view of further provision given in clause (c) of the said section the drawer of such cheque cannot be able to make payment. According to the counsel, the notice means a notice in writing. It is submitted that in this case no notice was given to the petitioner and therefore no opportunity was available to the accused-petitioner for payment or to raise objection by way of filing reply to the registered demand notice. Therefore, in view of such backdrop of the facts, the complaint filed by the respondent could not have been accepted by the courtsbelow. Accordingly, it is prayed that the petition may be allowed by granting relief as prayed in the petition.
4. Per contra, it is submitted by the counsel for the respondent that in fact registered demand notice was given on 13.2.2014 by the registered A.D. post by mentioning the correct residential address of the petitioner as House No. 30, Vinay Nagar Sector No.2, Bahodapur, Lashkar Gwalior, though it was returned on 16.4.2014 with an endorsement that “addressee left the place”. It is also submitted by the counsel that when complaint was filed, then notice was sent by the Court on the same address. Again, this time the notice returned with an endorsement but in different words that the “petitioner-accused went outside” Thereafter, bailable warrant was issued on the same address and in compliance of that on 20.8.2014 the petitioner appeared before the trial Court. The petitioner was deliberately avoiding the service of notice. Therefore, it is submitted by the counsel for the respondent that in such circumstances of the case, the presumption of service of notice should be drawn against the petitioner since the legal notices were sent by way of registered a/d posts to the drawer at the address of the drawer as available in the record of the complainant. In substance, it is the say of the respondent that since the legal notice was sent by properly addressing the drawer at the address availa
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