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2024 (7) TMI 858 - HC - Indian LawsDishonour of Cheque - insufficient funds - service of legal notice - authorisation of power of attorney to file the complaint on behalf of its principal - HELD THAT - In the instant case, legal notice was sent on 19.12.2018, therefore, for want of any specific averment and proof of service, if the presumption of service of notice in reasonable time is raised, it should be deemed to have been served at best within a period of 30 days, from the date of its post i.e. 17.1.2019. However, in the instant case, the complaint itself has been filed on 14th January, 2019. Thus, prima facie on 14.1.2019, no offence under Section 138 of N.I. Act, 1881, was attracted as after presumed service on 17.1.2019 still 15 days were required for response by applicant. The opposite party No.2 was still required to wait for another 15 days. Therefore, no offence under Section 138 of N.I. Act, 1881, was made out against the applicant on the relevant date when the complaint was filed. Since in the instant case, the complaint has been filed by the power of attorney holder in his own name and not as the power of attorney holder of the payee of the cheque and further no offence under Section 138 of N.I. Act, 1881, is constituted in view of the failure of the applicant to make assertion with regard to service of notice and on the basis of presumption of service after expiry of 30 days of its sending through registered post, no cause of action has ever arisen to opposite party No.2 to maintain the instant complaint. The entire proceedings of Criminal Complaint Case under Section 138 of Negotiable Instruments Act, 1881, Police Station-Bhadohi, District- Bhadohi, pending before the court of Chief Judicial Magistrate, Bhadohi at Gyanpur, are hereby quashed - the instant application under Section 482 Cr.P.C. is allowed.
Issues Involved:
1. Whether the dishonour of cheque for the reason 'referred to the drawer' falls under Section 138 of the Negotiable Instruments Act, 1881. 2. Whether the complaint under Section 138 of the N.I. Act was premature due to improper service of legal notice. 3. Whether a complaint filed by a power of attorney holder in his own name is maintainable. Issue-Wise Detailed Analysis: 1. Dishonour of Cheque for the Reason 'Referred to the Drawer': The applicant contended that the dishonour of the cheque for the reason 'referred to the drawer' does not fall under the provisions of Section 138 of the N.I. Act, 1881. The court referred to the relevant provisions of Section 138, which state that an offence is constituted if a cheque is returned unpaid due to insufficient funds or if it exceeds the arrangement with the bank. The court cited the Apex Court's judgment in *Raj Kumar Khurana vs. State of (NCT of Delhi)*, which emphasized the strict construction of penal provisions under Section 138. However, the court found that the judgments in *Electronics Trade & Technology Development Corpn. Ltd. vs. Indian Technologists & Engineers (Electronics) (P) Ltd.*, *K.K. Sidharthan vs. T.P. Praveena Chandran*, and *Modi Cements Ltd. vs. Kuchil Kumar Nandi* clarified that reasons such as 'referred to the drawer' fall within the ambit of Section 138. Therefore, the court concluded that the dishonour of the cheque for the reason 'referred to the drawer' is covered under Section 138 of the N.I. Act, 1881. 2. Premature Complaint Due to Improper Service of Legal Notice: The applicant argued that the complaint was premature as there was no assertion regarding the actual service of the legal notice, and the presumption under Section 27 of the General Clauses Act, 1897, should apply. The court noted that the legal notice was sent on 19.12.2018, and in the absence of specific proof of service, it should be presumed to have been served within 30 days. The court cited *Subodh S. Salaskar vs. Jayprakash M. Shah*, which held that a notice sent by registered post is presumed to be served within 30 days. Since the complaint was filed on 14.1.2019, before the presumed service date of 17.1.2019, and without waiting for the mandatory 15 days period post-service, the court found the complaint to be premature. Thus, no offence under Section 138 was constituted on the date the complaint was filed. 3. Maintainability of Complaint Filed by Power of Attorney Holder: The applicant contended that the complaint was filed by the power of attorney holder in his own name, which is not maintainable. The court referred to the judgment in *A.C. Narayanan vs. State of Maharashtra*, which held that a power of attorney holder can initiate proceedings on behalf of the principal but cannot file a complaint in his own name. The court observed that the complaint should have been filed in the name of the payee of the cheque, represented by the power of attorney holder. Since the complaint was filed in the name of the power of attorney holder, it was not maintainable. Conclusion: The court allowed the application under Section 482 Cr.P.C. and quashed the entire proceedings of Criminal Complaint Case No.61 of 2019 under Section 138 of the N.I. Act, 1881, pending before the Chief Judicial Magistrate, Bhadohi, on the grounds that the dishonour of the cheque for the reason 'referred to the drawer' falls under Section 138, the complaint was premature due to improper service of legal notice, and the complaint filed by the power of attorney holder in his own name was not maintainable.
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