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2023 (4) TMI 592 - HC - Indian LawsDishonour of Cheque - existence of legally enforceable debt and liability or not - non-service of notice - burden to prove - Sections 118 and 139 of NI Act - HELD THAT - In complaint under Section 138 of N.I. Act, the Court has to presume that the cheque had been issued for a debt or liability. This presumption is rebuttable. However, the burden of proving that a cheque had not been issued for a debt or liability is on the accused. The applicant being holder of cheque and the signature appended on the cheque having not been denied by the Bank, presumption shall be drawn that cheque was issued for the discharge of any debt or other liability. The presumption under Section 139 is a rebuttable presumption. It is not necessary to aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, the service of notice is deemed to have been effected at the time, at which the letter would have been delivered in the ordinary course of business - In the judgment of the Apex Court in the case of M/S. AJEET SEEDS LTD. VERSUS K. GOPALA KRISHNAIAH 2014 (8) TMI 464 - SUPREME COURT , the Apex Court has held that absence of averments in the complaint about service of notice upon the accused is the matter of evidence. In view of the settled legal position, it is clear that at this stage, only a prima facie case is to be seen and the complaint cannot be thrown at the threshold and the factum of disputed service of notice requires adjudication on the basis of evidence and the same can only be done and appreciated by the trial court. All the submissions made by learned counsel for the applicant is disputed questions of fact. Therefore, when the facts have to be established by way of evidence, this Court while exercising the powers under section 482 of Cr.P.C., cannot interfere with such proceedings. Hence, no grounds are made out for quashing of the proceedings under section 138 of the Negotiable Instruments Act. This Court finds that there is no illegality or infirmity in the summoning order dated 21.01.2021 passed by the concerned court below - application dismissed.
Issues Involved:
1. Quashing of the summoning order and complaint proceedings under Section 138 of the Negotiable Instruments Act, 1881. 2. Validity of the service of notice. 3. Prematurity of the complaint. 4. Non-inclusion of the company as a party. Summary: 1. Quashing of the Summoning Order and Complaint Proceedings: The applicant sought to quash the summoning order dated 21.01.2021 and the entire proceedings of Complaint Case No.1476 of 2022 under Section 138 of the Negotiable Instruments Act, 1881. The court observed that under Section 138, a cheque drawn by a person for the discharge of any debt or liability, if dishonored, constitutes an offense. The presumption under Section 139 that the cheque was issued for a debt or liability is rebuttable, and the burden of proof lies on the accused. The court found no illegality or infirmity in the summoning order, thus refusing to quash the proceedings. 2. Validity of the Service of Notice: The applicant argued that the service of notice was not effected, making the complaint non-maintainable. However, the court referred to Section 27 of the General Clauses Act, which presumes service of notice when sent to the correct address by registered post. Citing precedents, the court held that it is unnecessary to aver in the complaint that the notice was deemed served despite being unserved. The court concluded that the disputed service of notice requires adjudication based on evidence, which can only be done by the trial court. 3. Prematurity of the Complaint: The applicant contended that the complaint was premature as the 15-day period for payment after receiving the notice could not be calculated. The court noted that the applicant was summoned on 21.01.2021, and the application under Section 482 Cr.P.C. was filed on 22.12.2022, indicating knowledge of the summoning order. The court opined that the applicant should have either paid the amount or submitted a reply within 15 days from the date of summoning, thus rejecting the claim of prematurity. 4. Non-inclusion of the Company as a Party: The applicant argued that the complaint was not maintainable as the company was not made a party. The court clarified that the applicant had requested money in his individual capacity for his business, M/s B-Sauda Company. The court stated that disputed questions of fact need to be established by evidence, and it cannot interfere with such proceedings under Section 482 Cr.P.C. Conclusion: The court dismissed the application, finding no abuse of the court's process at the pre-trial stage and upholding the summoning order and the entire proceedings under Section 138 of the Negotiable Instruments Act.
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