2006 (9) TMI 617 - HC - Indian Laws

Dishonor of Cheque u/s 138 of Negotiable Instruments Act (''N.I. Act') - valid service of demand notice or not - No date of service on notice is mentioned - demanding re-payment of cheque money - presumption u/s 114 of Evidence Act r/w Section 27 of The General Clauses Act of service of notice - Challenged the Summon order - HELD THAT - As a fact, neither in the-complaint, nor in statement u/s 200 CrPC nor in the counter affidavit any date of service on notice demanding re-payment of cheque money from the applicants is mentioned. No document was also appended along with the complaint so as to indicate the said date. Even during the course of argument, the counsel for the respondent complainant could not point out the date of service of such notice. Thus, in the total absence of date of service of notice demanding payment of the cheque amount, no offence is made out against the applicants. Moreover, it cannot be said that any such notice was ever served on the applicants and consequently fifteen days period for making the payment of the cheque money can not be counted and unless that is done no offence is made out against the applicants. The contention of respondent complainant that the service is to be presumed also can not be accepted because Section 27 of General Clauses does not takes into it's purview service by private courier. Consequently, the contention of the learned Counsel for the applicant that the service should be presumed in the present case cannot be accepted as it does not hold good on the provision of the statute itself and has to be rejected. Resultantly, the submission of the counsel for the applicant that in the present case no offence is made out holds good and deserves to be accepted and I hold so. Summing up from the discussions made above, since, no offence u/s 138 of N.I. Act is made out against the applicants, in absence of date of service of notice of demand on them their summoning order passed by the Special Judicial Magistrate, in complaint case Rajbir Singh v. Deepak Kumar and Anr., u/s 138 of N.I. Act, cannot be allowed to stand and has to be quashed and I order so. Resultantly, this Criminal Miscellaneous Application is allowed. The summoning order against the applicants is quashed.

Summary

Issues Involved:
1. Validity of the summoning order under Section 138 of the Negotiable Instruments Act.
2. Service of notice through private courier and its legal presumption.
3. Essential ingredients for constituting an offence under Section 138 of the Negotiable Instruments Act.
4. Jurisdiction and procedural compliance for filing a complaint under Section 138 of the Negotiable Instruments Act.

Detailed Analysis:

1. Validity of the Summoning Order under Section 138 of the Negotiable Instruments Act:
The applicants sought to quash the summoning order dated 16.9.04 issued by the Special Judicial Magistrate (C.B.I.) Ghaziabad, which summoned them for committing an offence under Section 138 of the Negotiable Instruments Act. The applicants argued that the complaint did not specify the date on which the notice was served, which is crucial for establishing the offence under Section 138.

2. Service of Notice through Private Courier and its Legal Presumption:
The applicants contended that the notice sent through DTDC courier service did not establish a presumption of service under Section 114 of the Evidence Act read with Section 27 of the General Clauses Act. The court agreed, stating that Section 27 of the General Clauses Act pertains only to service by "registered post" and not private courier services. The court emphasized that private couriers lack the authenticity of service, and thus, the presumption of service cannot be extended to notices sent through them.

3. Essential Ingredients for Constituting an Offence under Section 138 of the Negotiable Instruments Act:
The court outlined the essential ingredients for an offence under Section 138 of the Negotiable Instruments Act:
- The drawer must have an operative bank account.
- The cheque must be issued for the discharge of a debt or liability.
- The cheque must be presented within its validity period.
- The cheque must be returned unpaid due to insufficiency of funds.
- A notice demanding payment must be served within 30 days of the cheque being dishonoured.
- The drawer must fail to make the payment within 15 days of receiving the notice.
- The complaint must be filed within one month after the 15-day period.

The court found that the complaint did not mention the date of service of the notice, which is a critical requirement. Without this date, it is impossible to determine if the offence under Section 138 is made out.

4. Jurisdiction and Procedural Compliance for Filing a Complaint under Section 138 of the Negotiable Instruments Act:
The court noted that for a valid complaint under Section 138, specific dates must be clear from the complaint or accompanying documents:
- Date on the cheque.
- Date of cheque deposit for encashment.
- Date of receipt of the dishonour memo from the bank.
- Date of notice to the drawer.
- Date of service of the notice.
- Date of filing the complaint.

In this case, the absence of the date of service of the notice in the complaint or accompanying documents meant the Magistrate lacked jurisdiction to entertain the complaint.

Conclusion:
The court concluded that no offence under Section 138 of the Negotiable Instruments Act was made out against the applicants due to the absence of the date of service of the notice. Consequently, the summoning order dated 16.9.04 was quashed.

Order:
The Criminal Miscellaneous Application was allowed, and the summoning order dated 16.9.04 in complaint case No. 7136 of 2004 was quashed. A copy of the order was directed to be sent to the trial court for further action.