1 THE HIGH COURT OF MADHYA PRADESH M.Cr.C.No .27982/2019 (Sachin Dubey Vs. Umashankar) Shri [ENTITY], learned counsel for the applicant. Shri [ENTITY], learned counsel for the respondent. ORDER
( 04/10/2019) The applicant has invoked extra ordinary jurisdiction of this Court under [SECTION] of [ACT] for quahshing the proceedings in [CASE NUMBER] pending before the Judicial Magistrate First Class, Indore for the offence punishable under [SECTION] of [ACT].
2. The facts of the case which are relevant to decide the present application is that the respondent filed a private complaint against the applicant for the commission of offence punishable under [SECTION] of [ACT] before the Judicial Magistrate First Class, Indore agitating that the applicant and respondent had good relation with each other being colleagues in their office and the applicant was in requirement of money for his business needs and approached for respondent for getting loan and respondent gave him total Rs. 2,40,000/- on 10.02.2015, 06.09.2016 and 07.11.2017. When the respondent asked for repayment of the said amount from the applicant, discharging his part liability, the applicant gave Rs. 25,000/- cash and for remaining amount of Rs.2,15,000/-, he issued three cheques, first bearing No.115823 dated 01.04.2018 for Rs. 35,000/-, second cheque bearing No.077455 dated 05.04.2018 for Rs. 1,00,000/- and third cheque bearing No.088756 dated 03.05.2018 for Rs. 35,000/- drawn on Indian Bank Branch Usha Nagar, Indore. When the respondent/complainant deposited the said cheques in his account operated in Axix bank at Indore, they were returned unpaid vide returned memos dated 05.05.2018, 03.05.2018, 04.05.2018 and 05.05.2018 with remark on each cheques as " Kindly contact drawer/drawee bank and pleasen." After that the respondent/complainant sent a legal notice dated 18.05.2018 to the applicant through registered post and the said registered dak was returned to the respondent with report " Praptkarta Aseemit Samay Ke liye Bahar Gaye Hain, Atah Wapas." Then the respondent/complainant filed complaint under [SECTION] of [ACT] before the Judicial Magistrate First, Indore.
3. Vide order dated 09.08.2018, learned Magistrate has taken cognizance against the present applicant upon finding prima facie case for the offence punishable under [SECTION] of [ACT] and had issued summons against the applicant for his appearance. The order dated 09.08.2018 is subject matter of challenge before this Court in the instant application.
4. Learned counsel for the applicant has submitted that the complaint presented by the applicant is not maintainable as prior mandatory statutory 15 days' notice has not been served on the applicant by the respondent. From the averments of the complainant itself, it is apparent that the notice sent by the respondent/complainant through registered post before instituting the complaint was returned unserved to the respondent and thereafter he did not make any further attempt to serve the notice to the applicant and filed the complaint. The acknowledgment card of the registered post of said notice, clearly shows that there are no signatures or acknowledgment of the applicant or anyone else on the same. Further, the postal remarks on the envelope of such registered post also have remarks "
Praptkarta Aseemit Samay Ke Liye Bahar Gaye Hain, Atah Wapas" , which does not show that it is served on the applicant. Despite this, the court below entertained the complaint and had taken cognizance against the applicant clearly ignoring this aspect of law and fact. It is also submitted that the said cheques were returned by the bank with the remarks " Kindly contact drawer/drawee bank and pleasen". The said reason for return of the cheques is not contemplated under [SECTION] of [ACT] and the cheques have actually never been dishonored. Actually the respondent was instructed by the bank to contact the drawer/drawee bank but the respondent without contacting the bank and without presenting it again has preferred the present complaint, therefore, the complaint filed by the respondent, cognizance order and entire criminal proceedings pending before the Judicial Magistrate Magistrate, First Class, Indore are liable to be quashed.
5. Learned counsel for the respondent contended that the Judicial Magistrate First Class, Indore has not committed any error of law in taking cognizance of the offence punishable under [SECTION] of [ACT] against the applicant as there exists prima facie case against him. The respondent has dispatched the notice of demand by registered post with correct address written on it and if the applicant was not found present in the house then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such non-service, hence, impugned order does not suffer any illegality, therefore, no interference is warranted in the present petition and same may be dismissed.
6. I have considered the rival contentions advanced by the learned counsel for the parties and perused the documents filed alongwith the petition.
7. The contents of the complaint filed before the Judicial Magistrate first Class, Indore reflects that the allegation have been levelled against the applicant for commission of offence under [SECTION] of [ACT]. It is not disputed that the applicant took loan of Rs. 2,40,000/- from the respondent/complainant and for repayment of the said amount, he gave Rs. 25,000/- in cash and for remaining of Rs. 2,15,000/- he had issued three cheques in favour of the respondent/complainant and when the respondent/complainant has deposited the said cheques in his bank account for encashment, then they were returned to him with the remarks " Kindly contact drawer/drawee bank and pleasen, meaning thereby the that the said cheques were dishonored by the bank. Thereafter the respondent/complainant issued statutory notice to the applicant within 15 days from receiving the information regarding dishonor of the cheque and the said notice was returned back to the respondent/complainant with remark that " Praptkarta Aseemit Samay Ke Liye Bahar Gaye Hain, Atah Wapas" .
8. Now it is important point to be decided in this case is that whether the cause of action has arisen as the notice sent by the respondent/accused to the accused/applicant was returned due to his unavailability. The conditions pertaining to the notice to be given to the drawer have been formulated and incorporated in clause (b) and (c) of the proviso of [SECTION] of the Act, the said clauses is reproduced below;-
(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, 20 [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.
On the part of the payee he has to make a demand by "giving a notice" in writing and on failure of the drawer to pay the cheque amount within the 15 days from the date of receipt of the notice, the cause of action for filing the complaint under [SECTION] of [ACT].
9. Admittedly, the notice under [SECTION] of [ACT] was sent to the applicant/accused through registered post on his correct address. It is well settled that once notice has been sent by registered post with acknowledgment, it must be presumed that the service is made effective. In the case of [PRECEDENT], the Hon'ble Apex Court has held that statutory notice under [SECTION] of the Act sent to the correct address of the drawer has been served has to be decided during trial and the complaint ought not to be dismissed at the threshold on the purported ground that there was no proper service of notice.
10. In the case of the [PRECEDENT], it was observed that if the notice has been sent by registered post on correct address, the postman tried to deliver on several dates and the notice was returned with the remark addressing ' not available', it must be presumed that notice duly served to the drawer and the burden to show that the accused had managed to get incorrect postal endorsement on the complaint and it can be considered during the trial on the facts of the case.
11. In the case [PRECEDENT], it was held that the notice of demand was sent to the drawer by registered AD in correct address and if it is returned with remark of endorsement that addressee was not available at the time of distribution of letter, the presumption may be raised as regards the valid service of the notice. Therefore, this question cannot be decided at this stage whether the notice has been duly served or not upon the applicant/accused. It can be decided after recording the evidence of the parties.
12. In the case of [PRECEDENT], the Delhi High Court has held that payee or the holder of a cheque was as much entitled to claim the benefit of presumption of service once he had dispatched the demand notice through registered post or postal certificate on the correct address of the sendee written on it and where he had proved such dispatch through original receipts that presumption of service by post under [SECTION] of [ACT] is rebuttable. But such rebuttal does not assume finality merely because of the sendee's denial to receive the notice. It would be so only where the sendee proves that he had not in fact received the notice and that he was not responsible for such non-service.
13. In [PRECEDENT]] the scope and ambit of [SECTION] clauses (b) and (c) of the Act were noted by the Kerala High Court and observed as follows:
"In Clause (c) of the proviso the drawer of the cheque is given fifteen days from the date 'of receipt of said notice' for making payment. This affords clear indication that 'giving notice' in the context is not the same as receipt of notice. Giving is the process of which receipt is the accomplishment. The payee has to perform the former process by sending the notice to the drawer in his correct address, if receipt or even tender of notice is indispensable for giving the notice in the context envisaged in Clause (b) an evader would successfully keep the postal article at bay at least till the period of fifteen days expires. Law shall not help the wrong doer to take advantage of his tactics. Hence the realistic interpretation for the expression 'giving notice' in the present context is that, if the payee has dispatched notice in the correct address of drawer reasonably ahead of the expiry of fifteen days, it can be regarded that he made the demand by giving notice within the statutory period. Any other interpretation is likely to frustrate the purpose for providing such a notice."
14. In the case of [PRECEDENT], the Hon'ble Apex Court has held that " 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] 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] of the Act, cannot obviously contend that there was no proper service of notice as required under [SECTION], by ignoring statutory presumption to the contrary under [SECTION] of the [ACT] and [SECTION] of the [ACT]."
15. It has been further argued on behalf of the applicant that the cheque had got dishonored for reason " Kindly contact drawer/drawee bank and pleasen." and not for the fund insufficient. Now the onus to prove this was upon the applicant and he can summon the bank record to show that at the relevant time period when the cheque in question was presented, he had sufficient balance in his account and therefore, the reason for dishonour of cheque in question is to be adjudicated after recording the evidence of the parties.
16. It is also pertinent to note that in the instant case, the complainant has already discharged his burden by producing the impugned cheques, which he alleges to have been issued by the applicant/accused in his favour bearing a signature, hence, initial presumption of the said cheque having been issued in favour of the complainant is already there which needs to be rebutted by the accused. The law cited above by this Court also makes is clear that these points may be determined only after evidence is laid by the respective parties according to the burden/onus of proof on them which keeps shifting at different stages and appreciation of such kind of evidence is possible to be made only during trial.
17. In view of the above analysis, this Court finds that the impugned order which is being challenged by the learned counsel for the applicant does not suffer from any lacuna at this stage and, therefore, this Court does not find any force in the arguments of the learned counsel for the applicant. Accordingly, this petition is dismissed being devoid of merits.
([ENTITY]) Judge praveen Date: 2019.10.05 12:41:13 -12'00'