Reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Revision No. 175 of 2001 (Old No. 2157 of 2000) Saurabh Agarwal S/o Sri Ashok Kumar Agarwal, R/o Mohalla Khalsa, Kashipur, District Udham Singh Nagar. …………..Revisionist. Versus (1) State (2) Mahendra Kumar Agarwal, S/o Late Sri Tula Ram, C/o Agarwal Auto Traders, Ram Nagar Road, Kashipur, District Udham Singh Nagar. ..………Opposite Parties. Sri Sudhir Kumar and Sri Anant Kumar Agarwal, Advocates for the Revisionist. Sri Deepak Dhingra and Sri Sarvesh Agarwal, Advocates for the Opposite Party no. 2. Hon’ble Prafulla C. Pant, J. This revision, filed under Section 397 read with Section 401 of Code of Criminal Procedure, 1973, is directed against the judgment and order dated 07.07.2000, passed by Sessions Judge, Udham Singh Nagar, in Criminal Revision No. 67 of 2000, whereby the said court allowed the revision filed by the accused / respondent no. 2 Mahendra Kumar Agarwal, setting aside the order dated 01.08.1998, passed by Additional Chief Judicial Magistrate, Kashipur, rejecting the 2 objection / protest petition of the accused in Criminal Complaint Case No. 690 of 1997, relating to offence punishable under Section 138 of Negotiable Instruments Act, 1881. (2) Heard learned counsel for the parties. (3) Brief facts of the case are that a criminal complaint (Case No. 690 of 1997) was filed by the present revisionist Saurabh Agarwal against accused / respondent no. 2 Mahendra Kumar Agarwal alleging that accused Mahendra Kumar Agarwal, Smt. Uma Agarwal and Darpan Agarwal, who are members of the same family running a partnership business in the name and style of M/s Agarwal Auto Traders. Complainant had good relations with said family and the accused Mahendra Kumar Agarwal sought a financial assistance for the business of the aforesaid firm, and received a loan of Rs.1,00,000/- through cheque no. 0885279, dated 15.07.1996. The accused had promised to pay back the said loan within a period of six months. When asked for repayment of loan accused Mahendra Kumar Agarwal issued a cheque no. 599536 dated 28.02.1997 for a sum of Rs.1,00,000/-. But when the complainant presented the cheque before the Bank it was returned on 12.03.1997 by the Bank with the report that in the account of the drawer sufficient amount is not available. On this complainant tried to contact the accused, but he avoided to meet. On this complainant got sent a registered notice through his Advocate Rishi Kumar Agarwal and also got sent one under certificate of posting on 17.03.1997. The notices through registered post were sent to the accused on his permanent 3 Business address of Kashipur and also on his temporary residential address of New Delhi. Accused got the notices returned from Kashipur with the endorsement that for a long period the addressee is out (even though the firm was doing its business at Kashipur). The notices issued on New Delhi address were got sent back with the endorsement that ‘addressee not met’. However, notices sent by certificate of posting were not received back and as such it can be presumed that the same were received by the addressee. Again on 05.04.1997 another notice was also sent to the accused but he refused to accept the same. No payment was made within 15 days of receipt of notice by the accused. On this criminal complaint was filed by the complainant (present revisionist), who got recorded his statement under Section 200 Cr.P.C. and also filed the documents including the original cheque dated 28.02.1997, information dated 12.03.1997 received from the Bank and copy of the notices sent to the accused. The Additional Chief Judicial Magistrate, Kashipur, took the cognizance on the complaint filed by the complainant and summoned the four accused, namely, 1. M/s Agarwal Auto Traders through its partner Mahendra Kumar Agarwal, 2. Mahendra Kumar Agarwal, 3. Uma Agarwal and 4. Darpan Agarwal, for allegedly committing offence punishable under Section 138 of Negotiable Instruments Act, 1881. The said order was passed by the Magistrate on 08.05.1997. (4) It appears that the accused filed objections on 16.04.1998 to the criminal complaint challenging the maintainability of the criminal complaint and praying for setting aside the order summoning the accused. After 4 hearing the parties, the Additional Chief Judicial Magistrate, Kashipur, before whom criminal complaint was pending dismissed the objections vide his order dated 01.08.1998. Aggrieved by said order, Criminal Revision No. 67 of 2000 was filed by the accused Mahendra Kumar Agarwal before Sessions Judge. Learned Sessions Judge after hearing the parties allowed the revision and set aside the order dated 01.08.1998, and further dismissed the criminal complaint filed by the complainant. Hence this criminal revision was filed by the complainant Saurabh Agarwal before Allahabad High Court on 28.09.2000, from where it is received by transfer under Section 35 of U.P. Reorganisation Act, 2000 (Central Act No. 29 of 2000) for its disposal. (5) Sri Sudhir Kumar, learned counsel for the revisionist / complainant assailing the impugned order passed by the revisional court argued that the said court has committed error of law by taking the view that since the address of the accused had changed as such if the notice sent to him was received back, it cannot be treated service on the accused / respondent. On examination of the record, I found that from the allegations made in the complaint it is clear that before filing criminal complaint against the accused in respect of offence punishable under Section 138 of Negotiable Instruments Act, 1881, notices were sent to the accused not only on the address of Kashipur where the firm used to do its business but also on the address of the accused / respondent no. 2, where he temporarily used to reside in Delhi. Notice sent to the accused on his business address received back with the endorsement that accused had gone out of station for quite sometime. The notice sent to Delhi address was 5 received back with the endorsement that he has left the address. In these circumstances, this Court is of the view that accused cannot take benefit of concealment of his address after he left Kashipur i.e. his place of business for sometime. Apart from this once the allegations made in the complaint were found true by the Magistrate after recording the statement of the complainant under Section 200 Cr.P.C. and considering other papers on record and accused was summoned, the prosecution of the criminal complaint could not have been set aside on the ground of factual disputes raised by the accused in his objections without recording evidence on that point. At the most on the basis of the objections what can be said is that the accused is disputing his address and receipt of notice. Disputed fact as to the address of the accused could not have been a ground for setting aside the prosecution and dismissing the complaint. Learned Sessions Judge, who passed the impugned order, should have permitted the complainant to adduce the prosecution evidence and the accused was at liberty to rebut the same by adducing evidence in defence. The summoning order in the criminal complaint could not have been set aside particularly when it was passed on the evidence on record adduced by the complainant. (6) On behalf of respondent no. 2 / accused Sri Deepak Dhingra drew attention of this Court to the cases of A. Sudershan Vs. Mannen (Shabir) and another, 1997 (2) Crimes 707, Jaya Chandran Vs. Baburaj, DCR 516 (Kerala), Shibu Chakraborty Vs. Smt. Arati Poddar and Anr., 1996 (2) All India Criminal Law Reporter, pg. 497, Mahabir Prasad Bargrodia Vs. State of Bihar, 6 1999 DCR, pg. 228 (Patna) and B. Adhikari Vs. Ponraj 1996 CRI. L.J. 180, and it is argued that unless there is service on the respondent / accused the criminal complaint in respect of offence punishable under Section 138 of Negotiable Instruments Act, 1881 is not maintainable. Attention of this Court is also drawn to clause (c) of said Section in which word ‘receipt’ is used. I have gone through the aforesaid case laws. Facts of the present case are different from the aforesaid cases. It is not the case of the accused that the notices were sent by the complainant on wrong address. Admittedly, the address of the accused / respondent at Kashipur where he runs business was the correct address and the notice was got sent back by the accused with the endorsement that the partner (accused) had gone out of station. Even the address of Delhi where the accused temporarily used to reside cannot be said to be a wrong address as the notice was received from that place with the endorsement that the addressee has left the address. If the argument advanced on behalf of the accused is accepted then any accused by concealing his address and changing his address and thereby avoiding the service can claim that he was not served with the notice as there is no receipt of the notice and as such on that basis he would start claiming that the criminal complaint made against him cannot be maintained. That is not the object of the law requiring service of notice on the drawer, who issued the cheque. This Court cannot close its eyes to the spirit of Section 138 of Negotiable Instruments Act, 1881. It is not meant for protecting a person who after getting dishonoured the cheque issued by him, by concealing his new address avoids the service. On the facts and circumstances of the case 7 having gone through the impugned order dated 01.08.1998, passed by Additional Chief Judicial Magistrate, Kashipur, who summoned the accused, this Court is satisfied that there was sufficient service of notice on the accused who failed to pay the amount within a period of 15 days to avoid his prosecution. (7) Both the parties relied in the case of Dalmia Cement (Bharat) Ltd. Vs. Galaxy Traders and Agencies Ltd. and others, 2001 Company Cases (Vol. 104) pg. 472. Relying on said judgment, learned counsel for the revisionist submitted that in view of provisions contained in Section 27 of General Clauses Act, 1897, transmitting a notice on a correct address, unless the contrary is proved would be deemed to have been delivered to the addressee. On the other hand learned counsel for the respondent no. 2 contended that there must be a ‘receipt’ of service of notice before prosecuting a person for an offence punishable under Section 138 of Negotiable Instruments Act, 1881. (8) Having considered the submissions of learned counsel for the parties and after going through the case laws referred, this Court is of the view that in a case where it is shown by the complainant that the accused has knowingly avoided the service of notice even after being sent to his business address as well as residential address and not disclosed the new address, sending of notice by registered post along with one sent under certificate of posting on the correct address is sufficient service of notice and on non payment of the amount mentioned in the cheque within 15 days the complaint under Section 138 of Negotiable 8 Instruments Act, 1881 is maintainable. Though subsequent notices were also sent after the period of limitation but does not make any difference, as the same are not relied by the trial court in summoning the accused. (9) For the reasons as discussed above, learned Sessions Judge has erred in law in setting aside the summoning order passed by the Magistrate in the criminal complaint filed by the complainant (present revisionist). Therefore, the revision is allowed and impugned order dated 07.07.2000, passed by Sessions Judge, Udham Singh Nagar, in Criminal Revision No. 67 of 2000, is set aside. The order dated 01.08.1998, passed by the Additional Chief Judicial Magistrate, Kashipur, is restored. Record be sent back. (Prafulla C. Pant, J.) 25.07.2008 NS