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2020 (5) TMI 311 - HC - Indian LawsDishonor of Cheque - offence u/s 138 of NI Act - rebuttal of presumption - applicant has been summoned to face trial - applicant has submitted that the initiation of the present proceeding on the basis of the complaint filed by the opposite party no.2 is an abuse of the process of law as there is no strict compliance of provision of Section 138 of Negotiable Instrument Act - HELD THAT - In view of the catena of the decisions of the Apex Court and also passed by this court in SMT. REENA TRIPATHI VERSUS STATE OF U.P. AND ANOTHER 2014 (7) TMI 1323 - ALLAHABAD HIGH COURT wherein it has been held that after service of notice if the amount of disputed cheques is not paid the cause of action accrued to the complainant to file the complaint against the drawer of the cheque. The interim order dated 31.3.2009 passed in favour of the applicant staying the proceeding of the summoning order dated 2.6.2007 is liable to be vacated and the petition be dismissed. The disputed question of fact cannot be dealt with in exercise of power under Section 482 Cr.P.C. in view of the catena of decisions of the Hon'ble Apex Court; the denial of the applicant that the cheque has not been issued by him and his cheque was lost and in respect of which Bank has also been informed; that the complaint is pre mature, the mandatory requirement of service of notice is lacking; the complaint was filed pre mature are all disputed questions of fact, which can only be gone into during the course of trial. The complaint was filed along with the oral and documentary evidence, which have already been referred to in the preceding paragraph, prima facie constitutes offence against the applicant. The cheque dated 29.1.2007 of ₹ 10,00,000/- given by the applicant was deposited by the complainant on 31.1.2007 in his bank at Canara Bank, Roorki Road, Muzaffar Nagar, which was returned by the bank with the endorsement of insufficient fund on 9.2.2007 along with memo dated 14.2.2007, which was received by the complainant on 26.2.2007, hence a notice was given with respect to the dishonour of cheque by the complainant through registered post on 9.3.2007, which was received at the address of the applicant and even after expiry of 15 days when the required amount mentioned in the cheque was not returned nor any reply was given, hence the complaint was filed on 26.4.2007 by the opposite party no. 2. Merely not mentioning the date of receipt of notice or service of notice by the complainant is a disputed question of fact, which shall be considered by the trial court. In view of the Section 27 of the General Clauses Act it is not necessary to mention in the complaint that service of notice was evaded by the accused or that the accused has stated about the notice to be un-served when the notice was sent by registered post at the address of the applicant, the mandatory requirement of issue of notice under Clause (b) of proviso to Section 138 of the Act stands complied with, therefore, the cognizance of the complaint under Section 138 of the Act has been taken as the court was satisfied prima facie that the case is made out under that section and that the procedural requirement has been complied with. To rebut presumption about the service of notice or that the address was incorrect or the filing of complaint prior to the expiry of notice period that would be considered by the trial court at the appropriate stage. The application is bereft of any merit accordingly dismissed.
Issues Involved:
1. Compliance with Section 138 of the Negotiable Instrument Act. 2. Premature filing of the complaint. 3. Validity of the legal notice and its service. 4. Allegations of fraud and forgery. 5. Presumption and rebuttal under Section 139 of the Negotiable Instrument Act. 6. Jurisdiction and discretionary power of the Magistrate. 7. Relevance of prior judgments and precedents. Issue-wise Detailed Analysis: 1. Compliance with Section 138 of the Negotiable Instrument Act: The applicant argued that the proceedings were an abuse of process as there was no strict compliance with Section 138. Specifically, the complaint did not mention the date of refusal of the notice, and the registered A.D. showed the notice was received on 17.4.2007. The court noted that the period of 15 days begins the day after the service of notice, and in this case, the complaint filed on 26.4.2007 was premature as the 15-day period would have ended on 2.5.2007. 2. Premature Filing of the Complaint: The applicant contended that the complaint was filed prematurely, violating mandatory provisions of the Act. The court reviewed precedents, including Patel Dinesh Kumar Shivram Somdas Vs. Patel Keshavlal Mohan Lal and M/s Saketh India Limited Vs. M/s. India Securities Limited, which held that the period for filing a complaint begins the day after the service of notice. The court found that the complaint was indeed filed prematurely. 3. Validity of the Legal Notice and Its Service: The applicant claimed the cheque was never issued to the opposite party and alleged forgery. The court examined whether the notice was served correctly and whether the complaint was filed prematurely. The court referenced multiple cases, including C.C. Alavi Haji Vs. Palapetty Muhammed, which stated that the service of notice is presumed when sent by registered post. The court concluded that the service of notice was a matter of evidence to be examined during the trial. 4. Allegations of Fraud and Forgery: The applicant alleged that the cheques were stolen and forged, and a complaint was lodged with the Commissioner of Police. The court emphasized that these are disputed facts that need to be examined during the trial and cannot be resolved in a petition under Section 482 Cr.P.C. 5. Presumption and Rebuttal under Section 139 of the Negotiable Instrument Act: The court discussed the presumption in favor of the holder of the cheque under Section 139, which is rebuttable. The court cited Rangappa Vs. Sri Mohan, which held that failure to rebut the presumption justifies conviction. The court found that the applicant's defense of forgery and lack of liability are matters to be proved during the trial. 6. Jurisdiction and Discretionary Power of the Magistrate: The court noted that the Magistrate acted within his jurisdiction in summoning the applicant based on prima facie evidence. The court referenced HMT Watches Limited Vs. M.A. Abida, stating that disputed questions of fact should be determined by the trial court. 7. Relevance of Prior Judgments and Precedents: The court reviewed several precedents, including Lafarge Aggregates and Concrete India Private Limited Vs. Sukarsh Azad and Laxmi Dyechem Vs. State of Gujarat, which emphasize the statutory presumption and the requirement of notice under Section 138. The court concluded that the complaint was filed with sufficient oral and documentary evidence, and the statutory presumption under Section 139 was applicable. Conclusion: The court dismissed the application, refusing to quash the proceedings. It directed the lower court to proceed expeditiously with the case, emphasizing that disputed questions of fact should be resolved during the trial. The court also noted that the procedural requirements under Section 138 were prima facie met, and the presumption of service of notice stands unless rebutted during the trial.
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