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TMI Blog2021 (6) TMI 475X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.12.12, 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. X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be incorrect, there would be a presumption in law with regard to service of notice. The summoning order passed by the Magistrate is legal and just in the eyes of the law and at this stage, only a prima facie case is to be seen and the complaint cannot be thrown at the threshold. As regards the contention of learned counsel for the applicant that the complaint on the basis of second notice dated 02.11.2012 is not maintainable, learned counsel Sri Vikrant Rana submitted that the second notice dated 02.11.2012 is only a reminder notice to the drawer of the cheque and as such the said notice could not be construed as an admission of non-service of first notice by the complainant. Heard Sri Pradeep Kumar Rai, learned counsel for the applicant, Sri Nikhil Chaturvedi, learned AGA for the State and Sri Vikrant Rana, learned counsel for the opposite party no.2. Before proceeding to consider the respective submissions of learned counsel for the parties, it is useful to extract the provisions of Section 138 of the Act. Section 138 of the Act is reproduced hereinbelow:- "138. Dishonor of cheque for insufficiency, etc., of funds in the accounts: Where any cheque drawn by a per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus, Section 114 enables the court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. Consequently, the court can presume that the common course of business has been followed in particular cases. When applied to communications sent by post, Section 114 enables the court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. But the presumption that is raised under Section 27 of the GC Act is a far stronger presumption. Further, while Section 114 of the Evidence Act refers to a general presumption, Section 27 refers to a specific presumption. For the sake of ready reference, Section 27 of the GC Act is extracted below: "27. Meaning of service by post.--Where any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression 'serve' or either of the expression 'give' or 'send' or any other expression is used, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stands complied with. It is needless to emphasise that the complaint must contain basic facts regarding the mode and manner of the issuance of notice to the drawer of the cheque. It is well settled that at the time of taking cognizance of the complaint under Section 138 of the Act, the court is required to be prima facie satisfied that a case under the said section is made out and the aforenoted mandatory statutory procedural requirements have been complied with. It is then for the drawer to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the cover was incorrect or that the letter was never tendered or that the report of the postman was incorrect. In our opinion, this interpretation of the provision would effectuate the object and purpose for which proviso to Section 138 was enacted, namely, to avoid unnecessary hardship to an honest drawer of a cheque and to provide him an opportunity to make amends. 16. As noticed above, the entire purpose of requiring a notice is to give an opportunity to the drawer to pay the cheque amount within 15 days of service of notice and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. As observed in Bhaskaran case [K.Bhaskaran Vs. Sankaran Vaidhyan Balan (1999) 7 SCC 510: 1999 SCC (Cri) 1284] if the "giving of notice" in the context of Clause (b) of the proviso was the same as the "receipt of notice" a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act." The aforesaid judgement in the case of C.C.Alavi Haji (supra) has been followed by the Apex Court in the case of Ajeet Seeds Limited Vs. K. Gopala Krishnaiah reported in (2014) 12 SCC 685 and held that absence of averments in the complaint about service of notice upon the accused is the matter of evidence. The paragraphs 11 and 12 of the said judgement are reproduced herein below:- "11. Applying the above conclusions to the facts of this case, it must be held that the High Court clearly erred in quashing the complaint on the ground that there was no recital in the complaint that the notice under Section 138 of the NI Act was served upon the accused. The High Court also erred in quashing the complaint on the ground that there was no proof either that the notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refused to accept, still then a presumption can be raised as regards the valid service of notice. Such a notice, as has been held by a Three-Judge Bench of this Court in C.C. Alavi Haji v. Palapetty Muhammed and another [(2007) 6 SCC 555] should be construed liberally, stating: (SCC p.565,para 17) "17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of criminal law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trospective effect or not depends primarily on the language in which it is couched. If the language is clear and unambiguous, effect will have to be given to the provision is question in accordance with its tenor. If the language is not clear then the court has to decide whether, in the light of the surrounding circumstances, retrospective effect should be given to it or not.' (See: Punjab Tin Supply Co. v. Central Govt.,(1984) 1 SCC 206, AIR 1984 SC 87). 10. There is nothing in the amendment made to Section 142 (b) by Act 55 of 2002 that the same was intended to operate retrospectively. In fact that was not even the stand of the respondent. Obviously, when the complaint was filed on 28.11.1998, the respondent could not have foreseen that in future any amendment providing for extending the period of limitation on sufficient cause being shown would be enacted." Coming to the facts of 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 ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is clear that generally there is no bar under the N.I.Act to send a reminder notice to the drawer of the cheque and usually such notice cannot be construed as an admission of non-service of the first notice by the appellant as has happened in this case. 16. Moreover the first notice sent by appellant on 12.04.1991 was effective and notice was deemed to have been served on the first respondent. Further, it is clear that the second notice has no relevance at all in this case at hand. Second notice could be construed as a reminder of respondent's obligation to discharge his liability. As the complaint, was filed within the stipulated time contemplated under Clause (b) of Section 142 of the N.I.Act, therefore Section 138 r/w 142 of N.I.Act is attracted. In view of the matter, we set aside the impugned judgement of the High Court." Hence, in view of the foregoing discussions both the submissions raised by the learned counsel for the applicants are not found to be cogent enough to dislodge the proceedings of Complaint Case No. 3972 of 2012, P.S. Kankarkheda, District-Meerut. The present application under Section 482 Cr.P.C. is devoid of merit and it is, accordingly, dismi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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