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2021 (6) TMI 475 - HC - Indian LawsDishonor of Cheque - insufficiency of funds - presumption of service of notice - difficulty in determination of date the cause of action - admission of non-service of first notice by the complainant - Validity of second notice - HELD THAT - The complaint cannot be thrown at the threshold even if it does not make a specific averment with regard to service of notice on the drawer on a given date. The complaint, however, must contain basic facts regarding the mode and manner of the issuance of notice to the drawer of the cheque. In the present case, the notice having been sent on 19.09.2012, if the presumption of service of notice within a reasonable time is raised, shall be deemed to have been served, at best within a period of 30 days from the date of issuance thereof i.e. 19.09.2012. The applicant was required to make payment in terms of the said notice within 15 days thereafter i.e. on or about 3.11.2012. The complaint, therefore, should have been filed by 03.12.12, Admittedly, the complaint was filed on 19.11.2012 and therefore, at this stage, it cannot be said that no proceedings under Section 138 of the Act could be drawn against the applicant. The Magistrate at the stage of summoning has only to see whether a prima facie case is made out or not - 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 and not by this Court under the jurisdiction conferred by Section 482 Cr.P.C. The present application under Section 482 Cr.P.C. is devoid of merit and it is, accordingly, dismissed.
Issues Involved:
1. Validity of the complaint under Section 138 of the Negotiable Instruments Act, 1881, due to the absence of the date of service of the notice. 2. Legality of the complaint based on the second notice dated 02.11.2012. Issue-wise Detailed Analysis: 1. Validity of the Complaint under Section 138 of the Negotiable Instruments Act, 1881: The applicant contended that the complaint did not disclose the date of service of the demand notice dated 19.09.2012, making it impossible to determine the cause of action for filing the complaint. The applicant relied on the decision in Alijan Vs. State of U.P. and another, 2020 (112) ACC 491, to support this argument. The court referred to Section 138 of the Negotiable Instruments Act, 1881, which outlines the conditions under which a person is deemed to have committed an offense for dishonoring a cheque. The court emphasized that the complaint must contain basic facts regarding the mode and manner of issuance of notice to the drawer of the cheque. The court cited the Supreme Court's judgment in C.C. Alavi Haji Vs. Palapetty Muhammed and another, (2007) 6 SCC 555, which established that a presumption of service of notice arises when it is sent by registered post to the correct address. The court also referred to the Apex Court's decision in Ajeet Seeds Limited Vs. K. Gopala Krishnaiah, (2014) 12 SCC 685, which held that the absence of averments in the complaint about service of notice is a matter of evidence. The court concluded that the complaint cannot be dismissed at the threshold for not mentioning the date of service of the notice. The presumption of service of notice within a reasonable time should be raised, and the factum of disputed service of notice requires adjudication based on evidence by the trial court. 2. Legality of the Complaint Based on the Second Notice Dated 02.11.2012: The applicant argued that the complaint based on the second notice dated 02.11.2012 was not legally maintainable. The opposite party contended that the second notice was merely a reminder and did not constitute an admission of non-service of the first notice. The court referred to the Supreme Court's judgment in N. Parameswaran Unni Vs. G. Kannan and another, AIR 2017 Supreme Court 1681, which held that the second notice has no relevance and should be construed as a reminder of the respondent’s obligation to discharge his liability. The court concluded that the cause of action to file the complaint arose from the first notice dated 19.09.2012, not the second notice dated 02.11.2012. Therefore, the complaint was filed within the stipulated time, and the proceedings under Section 138 of the Act were valid. Conclusion: The court dismissed the application under Section 482 Cr.P.C., finding no merit in the submissions raised by the applicant. The court directed the lower court to expedite the hearing of the complaint case by fixing short dates and avoiding unnecessary adjournments, emphasizing the mandate of the Act to conclude proceedings under Section 138 within six months.
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