2020 (1) TMI 1584 - HC - Indian Laws

Maintainability of petition - Dishonor of cheque - pre-condition as regard service of notice under Section 138 N.I. Act has remained uncomplied - HELD THAT - There are two material aspects coming out from the pleadings very clearly one that notice dated 7th October 2016 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. Application allowed.

Summary

Issues:
Challenge to summoning order and proceedings of complaint case under Section 138 of Negotiable Instrument Act, 1881 based on the service of notice and compliance with pre-conditions.

Analysis:
The applicant contested the summoning order and complaint proceedings, arguing that the complaint was not maintainable due to lack of effective service of notice as required under Section 138 of the Negotiable Instrument Act, 1881. The applicant relied on the Supreme Court judgment in the case of Shakti Travel and Tours v. State of Bihar, emphasizing the necessity of filing a complaint only after due service of notice. Additionally, the applicant cited a judgment of the Single Judge of the Court, Deepak Kumar and Another v. State of U.P., which reiterated the pre-condition of service of notice for a valid complaint under Section 138. The Court analyzed the absence of evidence regarding the date of service of notice in the complaint and held that without such evidence, no offense could be established against the applicant.

The applicant further referenced a judgment of the Bench in Nawab Singh v. State of U.P. & Another, supporting the argument that the complaint was not maintainable due to the lack of fulfillment of mandatory legal requirements. However, the State contended that the condition of service of notice was virtually complied with, citing a judgment in Chand Mohd v. State of U.P. The Court examined the presumption of service by registered post under Section 27 of the General Clauses Act and the burden of proof to rebut such presumption. After considering the arguments from both sides, the Court found that the complainant failed to establish effective service of notice within the required timeframe, as mandated by law.

The Court noted that while the judgment relied upon by the respondent referred to the sufficiency of service even in cases of refusal or absence, the essential 15-day notice period prescribed by law was not fulfilled in the present case. Consequently, the Court allowed the application under Section 482 Cr.P.C. and quashed the proceedings. However, the opposite party was granted the liberty to proceed in accordance with the law, citing the judgment of the Supreme Court in Yogendera Pratap Singh v. Savitri Pandey and Another for guidance.

This comprehensive analysis of the judgment highlights the legal intricacies surrounding the service of notice and compliance with pre-conditions under the Negotiable Instrument Act, ultimately leading to the quashing of the proceedings in question.