Charanjit Singh Vs. P.C. Nanda and Sons - Court Judgment

Excerpt:
negotiable instruments act, 1881 - sections 138 & 142--dishonour of cheque--summoning order passed by trial court--seek quashing under section 482 of cr.p.c.--complaint filed on the basis of second notice--first notice served through registered post--since a.d. card not received back--presumed not to be served--presumption of service under section 27 of general clauses act--no evidence adduced by complainant in inquiry under section 202 of cr.p.c.--no ground for quashing--summoning order set aside--complaint remanded back--with directions to hold inquiry--complainant should be given an opportunity--question of summoning shall be considered afresh--petition disposed of accordingly. - - 6. learned counsel for the respondent on the other hand has contended that the respondent was well within his rights to ignore the notice dated 18.11.1996 inasmuch as its acknowledgment was not received back and he did not know as to whether it had been served or not. according to him, the assurance given by the petitioner and fresh presentation of the cheque to the bankers on 20.12.1996 provided a fresh cause of action and as such, his complaint was well within the period of limitation. i am unable to accept this contention for the reason that had earlier notice not been given, the complainant could be well within his rights to compute limitation from the date of second dishonour of the cheque but once a notice under section 138 was issued on account of earlier dishonour of the cheque, legal rights and obligations commenced flowing in favor of the parties in terms of the provisions of the act and thereafter it was not within the domain of parties to obstruct or subvert the flow of these statutory rights and obligations. madhavan sunil kumar, reported in 1998crilj4066 ,their lordships of supreme court of india categorically held that the language of sections 138 and 142 of the act postulates only one cause of action and one offence, which is committed by the drawer immediately on his failure to make payment within fifteen days of receipt of the notice served in accordance with clause (b) of the proviso to section 138 of the act. their lordships observed that it necessarily means that for similar failure after service of fresh notice on subsequent dishonour, the drawer cannot be liable for any offence nor can be first offence be treated as non est so as to give the payee a right to file the complaint treating the second offence as the first one and at that stage it will be a question of waiver of right of payee to prosecute the drawer, but of absolution of the drawer of offence, which already stands committed by him and which cannot be committed by him again. the other impediment to the acceptance of the concept of successive causes of action is that it will make the period of limitation under clause (c) of section 142 otiose, for, a payee who failed to file his complaint within one month and thereby forfeited his right to prosecute the drawer, can circumvent the above limitative clause by filing a complaint on the basis of a fresh presentation of the cheque and its dishonour. the complainant/respondent, thereforee, can certainly lead evidence before the trial court and show that since the first notice had not been received by the accused, he was entitled to issue him a second notice and thereafter compute limitation from the date of receipt of the notice and failure to pay the amount within the prescribed period. 12. under the facts and circumstances of the case, this court is of the considered view that there are no good grounds for quashing the complaint under sections 138/142 of the act merely on the ground that the complainant had alleged issuance of an earlier notice when there is nothing on record to show that the said notice was received by the petitioner. , which he has failed to lead.r.c. chopra, j. 1. the petitioner, an accused in the court of metropolitan magistrate, delhi in a complaint filed by the respondent under sections 138 and 142 of the negotiable instruments act (hereinafter referred to as 'the act'), has come to this court under section 482 of cr. p.c. with the prayer to quash the proceedings arising out of criminal complaint case no. 33/1 of 1997 titled 'p.c. nanda & sons (h.u.f.) v. ganga automobiles and ors.2. i have heard learned counsel for the parties.3. the petitioner questions the maintainability of the present complaint filed on the basis of the notice dated 3.1.1997. it is urged that the respondent/complainant had earlier issued a notice dated 18.11.1996 also by registered a.d. post, but did not file any complaint under section 138 of the act within a period of one month of the cause of action, as required under section 138(c) of the act.4. learned counsel for the petitioner has drawn the attention of this court to para 9 of the complaint in which the respondent himself had averred that notice dated 18.11.1996 was sent by postal receipt no. 3682, but had pleaded that the said notice was apparently not served as acknowledgement due card was not received back and hence, he was not relying on the said notice. the second notice was issued on 3.1.1997 by registered a.d. post and when no payment was made within the statutory period, the complaint was lodged.5. the contention of learned counsel for the petitioner is that once notice dated 18.11.1996 was issued by registered a.d. post, presumption of its service under section 27 of the general clauses act arose and as such, the complaint ought to have been filed within a period of 30 days of non-payment after expiry of the statutory period of 15 days after service. according to him, it was for the respondent/ complainant to ascertain from the postal authorities about the date on which the notice sent by him had been served and thereafter compute the period during which he could file a complaint. he could not ignore his notice from which limitation flowed under sections 138 and 142 of the act.6. learned counsel for the respondent on the other hand has contended that the respondent was well within his rights to ignore the notice dated 18.11.1996 inasmuch as its acknowledgment was not received back and he did not know as to whether it had been served or not. he further contends that after the dispatch of the said notice, the respondent had again contacted the petitioner and on his assurance that the cheque would be encashed, he had again presented the cheque to the bankers, but it was dishonoured. according to him, the assurance given by the petitioner and fresh presentation of the cheque to the bankers on 20.12.1996 provided a fresh cause of action and as such, his complaint was well within the period of limitation.7. learned counsel for the petitioner has placed reliance upon a judgment of the supreme court of india in k. bhaskaran v. sankaran vaidhyan balan and anr., : 1999crilj4606 , wherein the court considered the question of notice in terms of section 138 of the act and referred to section 27 of general clauses act to hold that where a sender had dispatched the notice by post with the correct address written on it, it should be deemed to have been served on the sender unless he proved that it was not served and he was not responsible for such non-service.8. in the present case once the respondent/complaint had issued a notice to the petitioner by registered a.d. post on 18.11.1996, a presumption arose that the notice had been served on the petitioner affording a right to the respondent to file a complaint under section 138 of the act. the respondent had n justification at all to presume that the said notice had not been served merely on account of the fact that a.d. card had not been received back. it was his duty to make enquiries from the postal authorities as to whether the notice had been served or not. in the circumstances, a presumption of service under section 27 of the general clauses act operates. if the respondent/complainant had been informed by the postal authorities that the notice had been served, he was under an obligation to initiate steps for filing a complaint in terms of the limitation prescribed by section 142 of the act. on the other hand, in case the postal authorities informed him that the notice had not been served, he would have been within his rights to issue a fresh notice and then wait for its service to file a complaint under section 138 of the act.9. the argument advanced by learned counsel for the respondent is that a fresh cause of action arose in his favor when the respondent asked him to present the cheque again with the bankers and the cheque was again presented on 20.12.1996 and was dishonoured. i am unable to accept this contention for the reason that had earlier notice not been given, the complainant could be well within his rights to compute limitation from the date of second dishonour of the cheque but once a notice under section 138 was issued on account of earlier dishonour of the cheque, legal rights and obligations commenced flowing in favor of the parties in terms of the provisions of the act and thereafter it was not within the domain of parties to obstruct or subvert the flow of these statutory rights and obligations. if this plea is sustained, there would be no end to the notices under section 138 of the negotiable instruments act and repeated presentments merely with a view to enlarge the period of limitation as prescribed under section 142 of the act.10. in sadanandan bhadran v. madhavan sunil kumar, reported in : 1998crilj4066 , their lordships of supreme court of india categorically held that the language of sections 138 and 142 of the act postulates only one cause of action and one offence, which is committed by the drawer immediately on his failure to make payment within fifteen days of receipt of the notice served in accordance with clause (b) of the proviso to section 138 of the act. their lordships observed that it necessarily means that for similar failure after service of fresh notice on subsequent dishonour, the drawer cannot be liable for any offence nor can be first offence be treated as non est so as to give the payee a right to file the complaint treating the second offence as the first one and at that stage it will be a question of waiver of right of payee to prosecute the drawer, but of absolution of the drawer of offence, which already stands committed by him and which cannot be committed by him again. further observations made by their lordships in para 9 were as under:'the other impediment to the acceptance of the concept of successive causes of action is that it will make the period of limitation under clause (c) of section 142 otiose, for, a payee who failed to file his complaint within one month and thereby forfeited his right to prosecute the drawer, can circumvent the above limitative clause by filing a complaint on the basis of a fresh presentation of the cheque and its dishonour. since in the interpretation of statutes, the court always presumes that the legislature inserted every part thereof for a purpose and the legislative intention is that every part should have effect the above conclusion cannot be drawn, for, that will make the provision for limiting the period of making the complaint nugatory'.a complainant, who intends to put into motion the machinery of criminal law is under an obligation to present before the court facts, which satisfy all the ingredients of the offence and further show that his complaint is within the limitation, if any, prescribed by law. neither the court nor the accused can be left to guess anything in regard to the maintainability of the complaint inasmuch as summoning of a person for criminal offence has to be on firm grounds.11. in the case in hand, possibility is there that the notice was not at all served upon the petitioner, but the accused petitioner cannot be asked to face trial on uncertain or vague allegations regarding limitation. it is not for the accused to establish in the course of trial that the notice was actually served upon him and as such, the complaint was not maintainable. the burden is on the complainant only to establish that the first notice was not served upon the petitioner and as such, he was within his rights to issue a second notice. had there been any material on record to suggest that the first notice sent by the complaint/respondent by post had been received by the petitioner or he had refused to receive it or he had disclaimed it, this court would not have hesitated in quashing the complaint as time barred, but the difficulty is that the petitioner is relying upon a presumption only under section 27 of the general clauses act, which is rebuttable. the complainant/respondent, thereforee, can certainly lead evidence before the trial court and show that since the first notice had not been received by the accused, he was entitled to issue him a second notice and thereafter compute limitation from the date of receipt of the notice and failure to pay the amount within the prescribed period.12. under the facts and circumstances of the case, this court is of the considered view that there are no good grounds for quashing the complaint under sections 138/142 of the act merely on the ground that the complainant had alleged issuance of an earlier notice when there is nothing on record to show that the said notice was received by the petitioner. as discussed above, it is for the respondent/complainant to show that the said notice was not received by the accused petitioner and as such, the limitation prescribed under section 138 read with section 142 of the act did not start running against him. the respondent/complainant ought to have produced evidence in this regard in the inquiry under section 202 of cr. p.c., which he has failed to lead. it is the interests of justice that the respondent/complainant should be given an opportunity to lead further evidence before the tribal court to clarify this aspect of the matter. the summoning order dated 25.9.1997 passed by learned metropolitan magistrate, thereforee, is set aside and the complaint is remanded back to the trial court with directions to hold further inquiry and permit the respondent/complainant to lead further evidence. after further inquiry, learned metropolitan magistrate shall consider the question of summoning the accused afresh and proceed further in accordance with law.13. petition disposed of.