2020 (1) TMI 1582 - HC - Indian Laws

Maintainability of petition - Dishonor of Cheque - pre-condition as contained under Section 138 N.I. Act as regards service of notice, has remained uncomplied - HELD THAT - There are two material aspects coming out from the pleadings very clearly one that notice dated 16.07.2018 infact was sent by registered post and, therefore, it cannot be said that notice was sent on itself, and second, it clearly comes out from the record that there is no whisper regarding effective service of notice at the end of the complainant in the complaint. The complainant has not mentioned as to when he received back envelop containing notice and whether after receiving envelop back he had made complaint or prior to that. Accordingly even if he made complaint after accepting of the notice from the post office with note 'left', he could have filed such complaint only after expiry of 15 days but it is not the case here. Secondly if he considers that service of notice was effected then in all probability complaint should have been filed only after expiry of 15 days, and the date of service would have been clearly mentioned in the complaint. In the absence of any such mention in complaint itself, no inference of effective service and requirement of 15 days prior notice can be presumed to have been complied with. The application under Section 482 Cr.P.C. stands granted and the proceedings are quashed.

Summary

Issues:
Challenge to summoning order and proceedings of complaint case under Section 138 of Negotiable Instrument Act, 1881.

Analysis:
The applicant challenged the summoning order and proceedings of a complaint case under Section 138 of the Negotiable Instrument Act, 1881. The applicant argued that the complaint was not maintainable as the service of notice had not been effected within the stipulated time period of 15 days. The counsel relied on the judgment of the Apex Court in Shakti Travel and Tours v. State of Bihar, emphasizing the necessity of due service of notice for a complaint under Section 138 N.I. Act. Additionally, reference was made to a judgment of the Single Judge of the Court in Deepak Kumar and Another v. State of U.P. and Another, which highlighted the importance of service of notice as a pre-condition for maintaining a complaint under Section 138 of the N.I. Act.

The Court examined the arguments presented and noted that the complainant failed to provide any evidence of the date of service of the notice demanding repayment of the cheque amount. The absence of such crucial information led the Court to conclude that no offence was made out against the applicants. The Court also clarified that the General Clauses Act does not consider service by private courier for the presumption of service, further emphasizing the importance of proper service of notice as a pre-condition for maintaining a complaint under Section 138 of the N.I. Act.

The counsel for the opposite party contended that the condition of service of notice was fulfilled as the postal letter came back with a note indicating that service was effective. Reference was made to a judgment of the Court in Chand Mohd v. State of U.P., which discussed the presumption of service by registered post. However, the Court found that the complainant did not mention the effective service of notice in the complaint, and there was no clarity on when the complaint was filed in relation to the receipt of the notice. Consequently, the Court held that the complainant did not comply with the mandatory requirement of law, as the 15-day notice period was not fulfilled.

In conclusion, the Court granted the application under Section 482 Cr.P.C. and quashed the proceedings, citing non-compliance with the requirement of effective service of notice within the specified time period. The Court highlighted the importance of adhering to the legal provisions, as outlined in the judgments of the Apex Court and previous cases. The opposite party was given the opportunity to proceed in accordance with the law based on relevant legal precedents.