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TMI Blog2022 (11) TMI 1503X X X X Extracts X X X X X X X X Extracts X X X X ..... LD 148 : ILR 2007 (3) Ker. 203 : 2007 (6) SCC 555 : JT 2007 (7) SC 498 : 2007 (3) KLT 77 : 2007 (3) KLJ 81 : 2007 CriLJ 3214 : 2007 (3) SCC (Cri) 236 : 2007 (2) Guj LH 512 : 2008 (1) MPLJ 441 : 2008 (1) Mah LJ 44], CC Alavi Haji v. Palapetty Muhammed Anr. [ 2007 (5) TMI 335 - SUPREME COURT] and held 'Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement 'refused' or 'not available in the house' or 'house locked' or 'shop closed' or 'addressee not in station', due service has to be presumed.' The law is no more res integra on the point that a complaint can be quashed only when it falls under the category of cases as per the principles set out by the Apex Court - it is emphatically clear that notices were issued in Malayalam language as indicated herein above and, therefore, whether the same amount to proper notices is a matter of evidence. In such a case, the complaints cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e company as an accused. 4. In response to this argument, the learned counsel for the 2nd respondent placed a decision of the Apex Court reported in [2021 (6) KHC 368 : 2021 KHC OnLine 6691 : 2021 (13) SCALE 392 : 2021 (4) KLJ 834 : AIR 2021 SC 5726 : 2021 (6) KLT OnLine 1136 : 2022 (2) SCC 355 : 2021 SCC OnLine SC 1031 : 2022 (1) SCC (Cri) 514], Bhupesh Rathod v. Dayashankar Prasad Chaurasia Anr. and argued that in the said decision the Apex Court held, while considering the format of the complaint, that it is quite apparent that the Managing Director has filed the complaint on behalf of the Company. There could be a format where the Company's name is described first, suing through the Managing Director but there cannot be a fundamental defect merely because the name of the Managing Director is stated first followed by the post held in the Company. 5. As far as the decision in Aneeta Hada Ors. V. M/s. Godfather Travels Tours Pvt. Ltd. Anr.'s case (supra), the said ratio has no application in the present cases since in the present complaints the company is the 3rd accused where partners got arrayed as accused Nos. 1 and 2. 6. The second decision cited by the learned counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d reason, the notices were returned. According to the learned counsel for the 2nd respondent, though notices were returned, it could not be held that there were no proper legal notices in these matters since issuance of notices in the correct address alone would suffice the mandate of notice. He also submitted that whether the notices were issued in the correct address of the accused, is a matter of evidence. 8. On perusal of Annexures-A6, A7 and A8 notices issued in all these cases, notices were returned unserved. However, the photographs of the returned notices produced before this Court would go to show that notices were issued in the name of the accused by showing the name of the firm as . Wire Products. Therefore, it has to be held that the issuance of notices in the correct address is a matter of evidence and, therefore, the same is not a reason to quash the complaints. It is relevant to note that the legal position in so far as service of legal notice is well settled. The Apex Court considered the relevant provisos of the Evidence Act as well as General Clauses Act and Negotiable Instruments Act, 1881 in the decision reported in [2007 (2) KHC 932 : 2007 (2) KLD 148 : ILR 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irreparable. Quashing proceedings at preliminary stages will result in finality without the parties having had an opportunity to adduce evidence and the consequence then is that the proper forum i.e., the Trial Court is ousted from weighing the material evidence. If this is allowed, the accused may be given an un-merited advantage in the criminal process. Also because of the legal presumption, when the cheque and the signature are not disputed by the appellant, the balance of convenience at this stage is in favour of the complainant/prosecution, as the accused will have due opportunity to adduce defence evidence during the trial, to rebut the presumption. 18. Situated thus, to non-suit the complainant, at the stage of the summoning order, when the factual controversy is yet to be canvassed and considered by the Trial Court will not in our opinion be judicious. Based upon a prima facie impression, an element of criminality cannot entirely be ruled out here subject to the determination by the Trial Court. Therefore, when the proceedings are at a nascent stage, scuttling of the criminal process is not merited. 11. In the decision reported in [1976 (3) SCC 736], Smt. Nagawwa v. Veeran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aint, is warranted while examining prayer for quashing of a complaint. (ii) A complaint may also be quashed where it is a clear abuse of the process of the Court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. (iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. (iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence. (v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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