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TMI Blog2023 (4) TMI 592X X X X Extracts X X X X X X X X Extracts X X X X ..... plicant stating therein that in the month of April, 2018, the son of applicant, namely, Piyush Pandey met to the opposite party no.2 at his resident and insisted to the opposite party no.2 to invest certain money in the firm of son of applicant, which is name and style of M/s B-Sauda Company, which is said to be partnership firm. On assurance given by the son of applicant, the opposite party no.2 and his son agreed to invest money in the said firm and total amount of Rs.15,00,000/- was paid in three installments by the opposite party no.2 to the son of the applicant. After sometime, when the opposite party no.2 came to know the profit, which was said to be assured by the son of the applicant, he demanded the same, on which, the applicant has issued a cheque of Rs.15,00,000/- from Punjab National Bank, Branch-Shiv Market, Dadari Road, Gautambuddha Nagar, bearing cheque no.585725 dated 05.02.2019 in favour of opposite party no.2. On receipt of the same, opposite party no.2 has presented the same before the concerned Bank for encashment on 11.03.2019, but the same was dishonoured due to insufficient amount on 14.03.2019. Thereafter, opposite party no.2 sent a legal notice dated 08.04. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... money standing to the credit of that account is insufficient to honor the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both: PROVIDED that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fiftee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Singh Vs. Natthu Singh,3 [AIR 1992 SC 1604]; State of M.P. Vs. Hiralal & Ors.,4 [(1996) 7 SCC 523] and V.Raja Kumari Vs. P.Subbarama Naidu & Anr.,5 [(2004) 8 SCC 774]. It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved. ****** 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 cop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice 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 notice was served or it was returned unserved/unclaimed. That is a matter of evidence. We must mention that in C.C. Alavi Haji, this Court did not deviate from the view taken in Vinod Shivappa, but reiterated the view expressed therein with certain clarification. We have already quoted the relevant paragraphs from Vinod Shivappa where this Court has held that service of notice is a matter of evidence and proof and it would be premature at the stage of issuance of process to move the High Court for quashing of the proceeding under Section 482 of the Cr.P.C. These observations are squarely attracted to the present case. The High Court's reliance on an order passed by a two-Judge Bench in Shakti Travel & Tours is misplaced. The order in Shakti Travel & Tours does not give any idea about the factual matrix of that case. It does not advert to rival submissions. It cannot be said therefore that it lays down any law. In any case in C.C. Alavi Haji, to which we have made a reference, the three-Judge Bench has conclusi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its non- existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist." 12. In its latest judgment, the Apex Court in the case of Basalingappa Vs. Mudibasappa reported in (2019) 5 SCC 418, specifically in paragraph nos. -23 and 24 has noticed as follows:- "23. We may now notice judgment relied by the learned counsel for the complainant, i.e., judgment of this Court in Kishan Rao Vs. Shankargouda, (2018) 8 SCC 165. This Court in the above case has examined Section 139 of the Act. In the above case, the only defence which was taken by the accused was that cheque was stolen by the appellant. The said defence was rejected by the trial court. In paragraph Nos. 21 to 23, following was laid down:- "21...... 22. ........ "26. ...... 27. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Even otherwise, this application U/s 482 Cr.P.C. challenging the impugned summoning order, has been filed on 22.12.2022, which means that the applicant had knowledge about the aforesaid on 13.12.2022, which can be taken as service of notice upon the applicant, hence the cause of action firstly arose within fifteen days from the date of summoning order and in case the applicant has taken a stand of having no knowledge of summoning order, fifteen days after filing of this application, it was obligatory for the applicant to submit reply or pay some amount to the opposite party no.2 towards debt or liability. 15. As regards the submission made by the learned counsel for the applicant regarding that the company has not been made party, the Court finds that from the complaint itself, it is clear that the applicant had requested for money to be invested in his company. It is not a company, which has taken money, the applicant has requested for money in his individual capacity for the purpose of running his business, which is in name and style of M/s B-Sauda Company. All the submissions made by learned counsel for the applicant is disputed questions of fact. Therefore, when the facts ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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