IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.963 of 2008 SHYAMDEO PRASAD SINGH Versus STATE OF BIHAR & ANR ----------- For the petitioner: Mr. Rana Pratap Singh,Sr.Adv. Mr. Akhileshwar Prasad Singh, Adv. For the State: Mr. Ajay Mishra (A.P.P.) --------------- 10. 08.09.2010 The petitioner happens to be an accused under Patna Sadar Kotwali P.S.Case No. 393 of 2006 for offences under Sections 467, 468, 471 and 420 of the Indian Penal Code as well as Section 138 of Negotiable Instruments Act. On completion of investigation charge sheet under aforesaid Sections of penal law was filed. After filing of the charge sheet the question of the trial of the petitioner/accused for the aforesaid offences was taken up before the learned Magistrate to whom the case was sent by the learned C.J.M .after taking cognizance of the offence under the aforesaid Sections of penal law. Before the learned Magistrate, the petitioner filed a petition for discharge on the plea that a case for his trial for the aforesaid offence was not made out. Upon hearing and perusal of the case diary, the learned Magistrate vide his order dated 29.7.2008 rejected the prayer of the petitioner/accused for discharge and he passed an order for framing of the charge under the aforesaid Sections of the penal laws. The prosecution case in brief was that the complainant wanted employment for his graduate wife and the petitioner/accused convinced him that he would provide employment of the complainant’s wife as “clerk-cum-cashier” in 2 ICICI bank and that for this purpose a security deposit of Rs. 2 lakhs would be required as employment deposit which would be refunded after the confirmation of the job. On such representation as made by the petitioner/accused, the complainant/O.P. No.2 gave Rs. 2 lakhs to him. Further allegation is that any job in the bank was not arranged or provided and subsequently the petitioner/accused stated that some posts of teacher and teaching staff had fallen vacant under the Human Resources Department of Central Government, New Delhi and he provide job to complainant/O.P.No.2’s wife in that department. The allegation is that the petitioner/accused also gave some fake advertisement in news paper. It was also alleged that the petitioner/accused took several lakhs of money from several persons by making such false representation. It was also alleged that in order to covering his misdeed the petitioner/accused also get some forged appointment letters to some persons from whom he had taken money but nobody could be able to join any service or get any kind of job. It is also alleged by the complainant that when the misrepresentation and realizing money by the petitioner/accused came to the light of connected persons they pressurized him to either provide a job or return their money and that on such pressure the petitioner/accused issued four cheques dated 30.3.2006 for Rs. 25 lakhs, cheque dated 31.3.2006 for Rs. 25 lakhs, cheque dated 3.4.2006 for Rs. 25 lakhs and cheque dated 4.4.2006 for Rs. 20 lakhs all drawn upon Punjab Nation Bank, R.K. Revenue, Patna, to the complainant/O.P. No.2 with a request that the cheque be encashed 3 and the amount be disbursed in required proportion to the persons from whom he (petitioner/accused) had taken the money. The prosecution case was further that the cheque was presented to the Bank but it could not be encashed due to its having been dishonoured on the ground that there was no sufficient fund for the payment. Further case of the complainant was that after dishonour of the cheques, registered notice was sent to the petitioner/accused within prescribed time as provided under Section 138(b) of the N.I. Act but notice could not be served on the petitioner/accused and it returned with the postal peon’s endorsement that the addressee i.e. petitioner/accused was not living on the address. Thus after return of the notice complaint was filed which was sent by the learned C.J.M. for institution of F.I.R. and accordingly F.I.R. was instituted and charge sheet was submitted and after taking cognizance of the offence the case was sent to the trial court for trying the petitioner/accused for the aforesaid offences. During hearing of the revision, the learned counsel for the petitioner/accused/revisionist submitted that he does not challenge the impugned order of the learned Magistrate in so far as its directs for the framing of the charge under Section 467, 468, 471 and 420 of the Indian Penal Code but the petitioner//revisionist/accused intends to challenge only the portion of the impugned order which directs for framing of the charge under Section 138 of the N.I. Act. Thus the challenge of the impugned order is limited only to the extent of order of the learned Magistrate for framing charge under Section 138 of the 4 N.I. Act. Learned counsel for the petitioner/revisionist/accused submitted that Section 138(b) of the N.I. Act enjoins that a notice demanding payment of cheque money is served on person issuing cheque within 30 days from the date of the bank’s communication regarding dishonour of the cheque. It was further submitted that any such notice has not been served on the petitioner/revisionist/accused within 30 days and that, therefore, there is no ground for legal authority to prosecute the petitioner/revisionist/accused under Section 138 of the N.I. Act. In support of this submission, learned counsel for the petitioner/revisionist/accused cited the decisions in the cases of Harman Electronics Private Ltd. and another versus National Panasonic India Private Ltd reported in (2009) 1 SCC 720 and Central Bank of India and another versus Saxons Farms and other reported in (1999) 8 SCC 221 wherein it has been held that unless a notice is validly served under Section 138(b) of the N.I Act the Court does not get jurisdiction to proceed with the prosecution for the offences under Section 138(b) of the N.I. Act. The learned counsel for the petitioner/revisionist/accused also submitted that after return of the notice unserved the complainant/O.P.no.2 could have served a second notice but he did not try to serve such notice and that, therefore, the complainant gets no authority to prosecute the petitioner/revisionist/accused for the offences under Section 138 of the N.I. Act. In reply to the contentions of the 5 petitioner/revisionist/accused the learned counsel for the complainant/O.P. no.2 submitted that it is not a question of non- service of the notice but it is a question of knowledge of the notice and deliberately avoiding the service and that under such circumstances the knowledge of the notice in the petitioner/revisionist/accused is to be presumed and it has to be treated as served. He also submitted that despite the knowledge of the notice and the dishonour of the cheque, the petitioner/revisionist/accused did not make any efforts to pay the amount under the cheques to the complainant/O.P.no.2. It was also submitted that the petitioner/revisionist/accused fraudulently realized the money and he also fraudulently issued cheques for the sum without there being any deposit in his account in the bank for the encashment of those cheques. In support of this contention, the learned counsel for the complainant/o.p.no.2 cited the case of D. Vinod Shivappa versus Nanda Belliappa reported in A.I.R.(2006) S.C. 2179 wherein the Hon’ble Supreme Court has held that in case where the postal endorsement shows that the notice could not be served on account of non-availability 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 to Section 138 of the Act. It was further alleged that this question has to be answered by reference to the facts of each case and no rule of universal application can be laid down that in all cases where notice is not served on account of non-availability of the 6 addressee, the Court must presume service of notice. It is well settled that in interpreting a statute the Court must adopt that construction which suppresses the mischief and advances the remedy. This is a rule laid down in 76-ER-637 also known as the rule of purposive construction or mischief rule. The provision (c) to Section 138 is meant to protect honest drawers whose cheques may have been dishonoured for the fault of others, or who may have genuinely wanted to fulfill their promise but on account of inadvertence or negligence failed to make necessary arrangements for the payment of the cheque. It was further alleged that proviso is not meant to protect unscrupulous drawers who never intended to honour the cheques issued by them, it being a part of their modus operandi to cheat unsuspecting persons. The learned counsel also cited the case of M/s. Indo Automobiles versus M/s. Jai Durga Enterprises and others reported in A.I.R. 2009 S.C. 386 in which similar view has been taken. Referring to the ratio as laid down in the aforesaid two cited decisions the learned counsel for the complainant/o.p.no.2 submitted that the notice was sent to the complainant on his correct present address which address is also mentioned in his revision application filed before this Court. It was submitted that notice demanding payment is required to be served to the drawer of the cheque i.e. the petitioner/revisionist/accused in this case within 30 days from the date of the communication about the dishonour of the cheque and that such notice was already sent to the 7 petitioner/revisionist/accused in this case but knowing about the notice he deliberately left the address which has also been reported in the service report of the registered letter wherein it was reported that the addressee was not living on his address. Learned counsel further submitted that if the addressee deliberately avoids the service of notice he cannot be allowed to argue to that notice was not served to him within the prescribed time of 30 days. Thus hearing the parties, I find that the petitioner/revisionist/accused takes the plea that notice was not served to him within 30 days of the communication of the dishonour of the cheques and that due to this he cannot be prosecuted for the offences punishable under Section 138 of the Act whereas the stand taken by the complainant/o.p.no.2 is that the notice was sent to the complainant at his address but knowing fully well about the notice sent to him through registered post he deliberately left the place and avoided service of notice so that it could be served within the prescribed period of 30 days as provided under clause (b) of Section 138 of the N.I. Act. In view what has been held in the two details as cited by the complaint/o.p.no.2, it was argued that in such circumstances, the notice be deemed to have been served on the petitioner/revisionist/accused. In view of the facts and circumstances of the case and on hearing the parties, I find that it involves determination of question of facts whether the petitioner/revisionist/accused deliberately avoided the service of notice as indicated under the 8 circumstances of the case. In such view of the matters, the learned trial Magistrate was justified in ordering for framing of charge under Section 138 of the N.I. Act also so that the matter regarding service or avoiding of the service of the notice could be decided on the facts asserted by the complainant/O.P. No.2. In such view of the matters, I find no merit in the application. Accordingly, this revision is dismissed. Ravi/- ( C. M. Prasad, J.)