Judgment:
Surinder Singh, J.
1. The petitioner herein was summoned as an accused in the compliant filed by the respondent under Section 138 of the Negotiable Instruments Act (in short 'the Act') thus sought quashing of the proceedings against him on the ground that the complaint was barred by limitation, on the issuance of first notice of demand and the second notice would not give a fresh lease or cause of action to file the complaint.
2. Heard and gone through the record of the case.
3. The facts relevant for the disposal of this petition can be stated thus. The respondent is alleged to have sold the accused-petitioner old fitting-equipments and machinery for Rs. 95,000/- and the petitioner accused allegedly issued the cheque No. 433616 dated 4.5.2007 drawn on his account No. 628505009913 on ICICI Bank of Meerut Branch to discharge his liability.
4. The cheque aforesaid on its presentation was dishonoured as the petitioner was having 'insufficient fund' in his account. Thus the respondent sent a legal notice dated 24.6.2007 by post on 3.7.2007 vide postal receipt No. 621, calling upon the accused-petitioner calling him to pay the cheque amount within 15 days from the receipt thereof.
5. The notice was returned with the endorsement made on 11.7.2007 by the postman, that despite repeated visits the addressee was not available. Thereafter the complainant sent another notice on 19.7.2007 by registered post, which also bounced back with the endorsement dated 26.7.2007 that no such person was available on the given address.
6. According to the respondent, accused petitioner was deliberately avoiding the service of notice in connivance with the Postal Department, thus filed the complaint in the court of learned Judicial Magistrate on 20.8.2007. After preliminary evidence, learned trial court found reasonable grounds to summon the accused-petitioner as an accused for the alleged offence vide the impugned order dated 16.11.2007, which has been challenged in this petition on the above stated grounds.
7. Chapter XVII of the Act containing the fascicule of Sections 138 to 142 was brought into the statute book with effect from April 1, 1989 by Section 4 of the Banking Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act 1988. The 'Object and Reasons' Clause of the Bill which introduced the Amending Act, indicates that the new Chapter was incorporated to enhance the acceptability of cheques in settlement of liabilities by making the drawer liable for penalties in case of bouncing of cheques due to insufficiency of funds in the account(s) or for the reason that it exceeds the arrangements made by the drawer with adequate safeguards to prevent harassment of honest drawers.
8. Now, Section 138 of the Act reads as under:
Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour 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 provision 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 cheques, 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 thirty 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 fifteen days of the receipt of the said notice.
[emphasis mine]
9. Section 142 of the Act puts a limitation on the power of the court to take cognizance of the offences, which reads as under:
142. Cognizance of offence:
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),:
(a) no Court shall take cognizance of any offence punishable under Section 138 except upon a complaint , in writing, made by the payee or, as the case may be, by the holder in due course of the cheque;
(b) Such complaint is made within one month of the date on which the cause of action arises under Clause (c) of the proviso to Section 138;
[Provided that the cognizance of a complaint may be taken by the court after prescribed period, if the complainant satisfies the court that he had sufficient cause for not making a complaint within such period.]
(c) No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class shall try any offence punishable under Section 138.
[emphasis mine]
10. In view of Clause (b) of Section 142 above, the complaint is required to be filed within one month from the date on which the cause of action arose in terms of Clause (c) of Section 138 of the Act. Thus, the complaint must demonstrate the existence of the following ingredients of the offence punishable under Section 138 of the Act:
(a) a cheque was issued;
(b) the same was presented
(c) but on presentation, it was dishonoured
(d) a notice in terms of the said provisions was served upon the person sought to be made liable; and
(e) despite the service of notice, neither any payment was made nor other obligations, if any were complied with within fifteen days from the date of receipt of the notice Undisputedly, therefore, unless the conditions aforesaid for taking cognizance are satisfied, the court will have no jurisdiction to pass an order in that behalf. Keeping in view the above legal position in mind in the instant case the ingredients of (a) to (c) above stands prima facie fully satisfied. However, (d) and (e) are required to be examined in detail.
11. Now, whether the service of notice was effected on the person sought to be made liable, the presumption of service under the statute, was held by the Supreme Court in Subodh S. Salaskar v. Jay Prakash M. Shah and Anr. (2008) 13 SCC 689 to have arisen not only when it is sent by registered post in terms of Section 27 of the General Clauses Act but such a presumption could be raised also under Section 114 of the Evidence Act. But such a presumption of valid service of notice still can be raised, even when a notice is received back with an endorsement that the party has refused to accept it. Further, In C.C. Alavi Haji v. Palapetty Muhammad and Anr. : 2007CriLJ3214 , the Supreme Court held:
It is also to be borne in mind that 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 the payment within 15 days of the 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 the receipt of summons from the court along with the copy of complaint under Section 138 of the Act, cannot be obviously contend that there was no proper service of notice required under Section 138, by statutory presumption to the contrary under Section 27 of the General Clauses Act and Section 114 of the Evidence Act. In our view, any interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran's case : 1999CriLJ4606 , if the 'giving of notice' in the context of Clause (b) of the proviso was the same as the 'receipt of notice' a trickestar 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.
12. In D. Vinod Shivappa v. Nanda Belliappa : 2006CriLJ2897 , the Supreme Court held that when the drawer refuses to accept the notice or when he evades the service of notice by fraudulent and unscrupulous means so that the envelope containing the notice is returned with a false endorsement such as, premises are locked or addressee not available, the court may presume the receipt of notice by drawer. Whether the notice was fraudulently avoided by the drawer is a question of fact to be determined by the court on the basis of evidence on record. But however, the question is whether in a case of this nature, where the postal endorsement shows that the notice could not be served on account of the nonavailability of the addressee, a cause of action may still arise for prosecution of the drawer of the cheque on the basis of deemed service of notice under Clause (c) of proviso of Section 138 of the Act.
13. If the facts of this case are seen, in the background of the above settled proposition of law, the Memo of dishonour of the cheque was returned to the respondent on 24.6.2007 and the notice was issued on 3.7.2007 i.e. within 15 days and now, if 11.7.2007 is, prima facie taken the date of service of the notice and the accused did not pay the cheque amount within 15 days thereafter i.e. on or about 26.7.2007. Certainly the cause of action would arise and the complaint was to be filed on or before 26.8.2007. Section 142 of the Act only forbids the Magistrate from taking cognizance of the offence if the complaint is not filed within one month of the date when the cause of action arose. Reliance can be put on Subodh S. Salskar case : (2008) 13 SCC 689, and D. Vinod Shivappa case : 2006CriLJ2897 ].
14. But however in the case in hand complaint was filed on 20.8.2007 i.e. within one month from the date, the cause of action has arisen. Therefore, the second notice in this case is inconsequential and will not give a fresh cause of action.
15. In fact, completion of the offence is the immediate forerunner of the cause of action. When the notice is sent more than once either by fax or by registered post it was held by the apex Court in SIL Import USA v. Exim Aides Silk Exporters, Banglore : 1999CriLJ2276 that in such circumstances, limitation period starts running from the date of receipt of the former notice by the drawer and not from subsequent date of receipt of later notice by him.
16. Therefore, for the reasons aforesaid the learned Magistrate can take the cognizance of the complaint as it is held to have been filed within time. Thus, the present petition is dismissed. Parties are directed to be present before the learned trial Magistrate on 25.5.2009. Send down the record.