2023 (11) TMI 141 - HC - Indian Laws

Dishonour of Cheque - no evidence given to demonstrate that notice was served on a particular date - it was nowhere written in the complaint as to when the notice was served on the accused - HELD THAT - The date of the receipt of notice is very much important but it is not necessary that any particular date as regard receipt of demand notice should mandatorily be mentioned in the complaint itself - In judgment of Deepak Kumar and Another 2006 (9) TMI 617 - ALLAHABAD HIGH COURT , this High Court observed that in case dates are not revealed in the complaint, the same can be inferred from the paper on record. In this case the complainant, in his complaint, clearly stated that the notice was sent through a registered post on 19.11.2019 and that it was never returned to the complainant. In view of the above statement in the complaint and in view of the papers produced viz, the cheque, the Bank memo, demand notice, the disclosure of material dates like, date of dishonour, date of sending the notice, the date on which 15 days elapsed, the date of the filing of the complaint clearly and explicitly mentioned in para no. 12 of the complaint, there remains no doubt that the petition is wholly without merit. It may specifically be noted that para no. 12 of the complaint discloses a date of service of notice as well, a fact which has been conveniently ignored by the accused petitioner all the while - an attempt to stall the proceedings has been made on the basis of non-existent ground. There are no infirmity, illegality or irregularity in the summoning order dated 10.12.2020 as well as the order dated 20.01.2023 - petition dismissed.

Summary

Issues involved:
The judgment addresses the challenge to summoning order under section 138 of the Negotiable Instruments Act, 1881 and the subsequent affirmation by the revisional court.

Challenge to Summoning Order:
The petitioner contested the summoning order on the grounds of non-service of demand notice and alleged payment of the due amount. The court examined the relevant documents including the cheque, return memo, and notice. It was found that the cheque was dishonored, notice was sent through registered post, and no payment was made within the stipulated time. The trial court's decision to summon the petitioner was based on these facts.

Contentions and Legal Precedents:
The petitioner argued that the complaint lacked specific mention of the date of notice service, thus challenging the validity of taking cognizance. Reference was made to the Supreme Court and Allahabad High Court judgments outlining the essential dates required for a section 138 offense. The court clarified that while the date of notice receipt is crucial, it need not be explicitly stated in the complaint and can be inferred from the record.

Legal Presumptions and Final Decision:
The Supreme Court's interpretation of presumptions under the Evidence Act and General Clauses Act was cited to support the presumption of service of notice when sent by registered post. The court emphasized that the complaint in this case clearly stated the date of notice dispatch and other material dates. Consequently, the petition challenging the summoning order was deemed meritless, with the court finding no irregularities or legal flaws in the orders. As a result, the petition was dismissed.