Criminal Misc. No. M-11092 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M-11092 of 2010 Date of Decision: 20.04.2010 R.S. Sandhu son of Late Hazara Singh, SCO No. 3-C, Phase III B-2, Ground Floor, SAS Nagar, Mohali. ... Petitioner Versus Lt. Col. Surinder Singh Randhawa son of Late Mauji Dalip Singh, resident of H. No. 2557, Sector 35-C, Chandigarh. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. G.S. Bhatia, Advocate, for the petitioner. SHAM SUNDER, J. This petition under Section 482 Cr.P.C., for quashing the order dated 12.04.2010 (Annexure P4), passed by the Judicial Magistrate 1st Class, Chandigarh, in Criminal Complaint, under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter to be called as the 'Act' only), bearing No. 11508 of 24.12.09', vide which, the application (Annexure P2), filed by the petitioner, for the rejection of complaint, was dismissed, and for allowing the application dated 03.03.2010, has been filed by the petitioner. 2. The facts, in brief, are that, the petitioner, issued a cheque, bearing No. 816785, drawn on Indus Ind Bank, Phase III B-2, SAS Criminal Misc. No. M-11092 of 2010 2 Nagar, Mohali, amounting to Rs. 10,670/-, dated 05.07.09, in the discharge of his legally enforceable liability, in favour of the complainant/respondent. When the cheque, was presented, for encashment, in the bank, the same, was dishonoured. Memo dated 14.11.09, was received. After the receipt of dishonour memo dated 14.11.09, a legal notice dated 16.11.09, was issued, to the accused/petitioner, through Registered Post, as well as through UPC. The notice, sent through Registered Post, was received back as unclaimed, but the other notice, sent through UPC, was duly received, by the accused, on 18.11.09. Despite issuance of legal notice, the amount of the dishonoured cheque, was not paid. Ultimately, after the expiry of the requisite period, prescribed by law, criminal complaint, under Section 138 of the Act, was filed. 3. The accused/petitioner, moved an application dated 03.03.2010 for rejection of the complaint, on the ground, that, in the first instance, the complainant, told him, that he would not present the cheques, issued in his favour, but, without his knowledge, presented the same. It was stated that the petitioner never received any legal notice, from the complainant/respondent. It was further stated that, as soon as, the petitioner received the summons, in the complaint, within 15 days of the receipt thereof, he offered the entire amount of the dishonoured cheques, to the complainant, but, he failed to accept the same, and, as such, the complaint, was liable to be rejected. 4. After hearing the Counsel for the parties, and, on going Criminal Misc. No. M-11092 of 2010 3 through the record, the trial Court, dismissed the application, filed by the petitioner, vide order dated 12.04.2010. 5. Feeling aggrieved, the instant petition, has been filed by the petitioner. 6. I have heard the Counsel for the petitioner, and, have gone through the documents, on record, carefully. 7. The Counsel for the petitioner, submitted that the petitioner, never received legal notice, allegedly issued by the complainant/respondent. He further submitted that, under these circumstances, as soon as, the petitioner, received summons, in the complaint, under Section 138 of the Act, filed by the complainant/respondent, within 15 days, he got prepared the draft of the amount of the dishonoured cheque, and, filed an application for rejection of the complaint alongwith that draft. He further submitted that, in C.C. Alavi Haji Vs. Palapetty Muhammed and another, 2007(3), RCR (Criminal), 185 (SC), and, M/s Mehak Steel Rolling Mills Vs. Ram Charan and another, Criminal Appeal No. 1152- SBA of 2000, decided, on 19.02.2010, the principle of law, laid down, was to the effect, that, in such a situation, if the accused/petitioner, is ready, to make payment, within 15 days, from the date of receipt of summons, in the complaint, under Section 138 of the Act, then the complaint, could not continue, and, was liable to be rejected. He further submitted that the order impugned, being illegal, is liable to be set aside. 8. After giving my thoughtful consideration, to the Criminal Misc. No. M-11092 of 2010 4 contentions, raised by the Counsel for the petitioner, in my considered opinion, the petition, is liable to be dismissed, for the reasons, to be recorded, hereinafter. In the complaint (Annexure P1), it was, in clear-cut terms stated, by the complainant/respondent, that, on receipt of dishonour memo dated 14.11.09, a legal notice, dated 16.11.09, through Registered AD Cover, as also through UPC, was issued, to the petitioner. The Registered notice, which was sent, to the petitioner, was received back, as unclaimed, by the complainant/respondent, as is evident, from the reply (Annexure P3), to the application, filed by him (complainant/respondent), on which, the order impugned was passed, whereas, the notice, sent through UPC, was received by the petitioner. Section 138 of the Act, was enacted to punish unscrupulous drawers of cheques who, though purport to discharge their liability, by issuing cheques, have no intention of really doing so. Apart from civil liability, criminal liability is sought to be imposed, by the said provision, on such unscrupulous drawers of cheques. However, with a view to avert unnecessary prosecution of an honest drawer of the cheque, and with a view to give an opportunity to him, to make amends, the prosecution under Section 138 of the Act, has been made subject to certain conditions. These conditions are stipulated, in the proviso engrafted to Section 138 of the Act. Under Clause (b) of the proviso, the payee or the holder of the cheque, in due course, is required to give a written notice to the drawer of the cheque, within a period of thirty days, from the date of receipt of information, from the bank, Criminal Misc. No. M-11092 of 2010 5 regarding the return of the cheque as unpaid. Under Clause (c), the drawer is required to be given fifteen days time, from the date of receipt of notice of dishonour of the cheque, to make payment, and only, if he fails to make the payment, a complaint may be filed against him. The object of the proviso is to avoid unnecessary hardship to an honest drawer. The issue, with regard to the interpretation of expression 'giving of notice', used in Clause (b) of the proviso, was made, in K. Bhaskaran Vs. Sankaran Vaidhyan Balan & another, 1999(4) RCR (Criminal), 309 (SC). Considering the question, with particular reference to the scheme of Section 138 of the Act, it was held, that failure, on the part of the drawer, to pay the amount, should be within fifteen days 'of the receipt' of the said notice. 'Giving notice' in the context is not the same as 'receipt of notice'. Giving is a process of which receipt is the accomplishment. It is for the payee, to perform the former process, by sending the notice to the drawer, at the correct address, and for the drawer, to comply with Clause (c) of the proviso. Emphasizing that the provisions contained in Section 138 of the Act, are required to be construed liberally, it was observed as under:- “If a strict interpretation is given that the drawer should have actually received the notice for the period of 15 days to start running no matter that the payee sent the notice on the correct address, a trickster cheque drawer would get the premium to avoid receiving the notice by different strategies and he could escape from the legal consequences of Section 138 of the Act. It must be borne in mind that Court should not adopt an interpretation which Criminal Misc. No. M-11092 of 2010 6 helps a dishonest evader and clips an honest payee as that would defeat the very legislative measure. In Maxwell's Interpretation of Statutes the learned author has emphasized that “provisions relating to giving of notice often receive liberal interpretation,” (vide page 99 of the 12th Edn.). The context envisaged in Section 138 of the Act invites a liberal interpretation for the person who has the statutory obligation to give notice because he is presumed to be the loser in the transaction and it is for his interest the very provision is made by the Legislature. The words in Clause (b) of the proviso to Section 138 of the Act show that payee has the statutory obligation to “make a demand” by giving notice. The thrust in the clause is on the need to “make a demand”. It is only the mode for making such demand which the Legislature has prescribed. A payee can send the notice for doing his part for giving the notice. Once it is dispatched his part is over and the next depends on what the sendee does.” 9. In K. Bhaskaran's case (supra), the notice, issued in terms of Clause (b) had been returned as unclaimed and not as refused. The Apex Court posed the question “Will there be any significant difference between the two, so far as the presumption of service is concerned?” It was observed that, though, Section 138 of the Act, does not require that, the notice, should be given only by “post”, yet, in a case, where the sender has dispatched the notice, by post, with correct address written on it, the principle incorporated in Section 27 of the General Clauses Act, 1897, could profitably be imported, in such a case. It was held that, in this situation, service of notice is deemed to have been effected, on the sendee, unless he proves that it Criminal Misc. No. M-11092 of 2010 7 was not really served and that he was not responsible for such non- service. In view of the specific plea, taken by the complainant/respondent, in reply (Annexure P3), that the notice, sent through Registered Cover, at the correct address of the petitioner, was received back as unclaimed, whereas, notice, sent through UPC, was received, by the petitioner, it could not prima-facie be said, that the petitioner, did not receive the notice. During the trial of the case, he may prove, as to whether, he actually received the notice or not. At this stage, the Court, cannot go deep into the merits of the case. Once, it is prima-facie established, that notice, sent through Registered Cover, was received back as unclaimed, and, as such, it was deemed to be duly served, whereas, the notice, sent through UPC, was received, by the petitioner, on 18.11.09, it was for him, to pay the amount of dishonoured cheques, within 15 days, from the date of receipt thereof. The principle of law, laid down, in K. Bhaskaran's case (supra), is fully applicable to the facts of the instant case. The facts of C.C. Alavi Haji's case (supra), are clearly distinguishable, from the facts of the instant case. In that case, it was not even prima-facie established, that the notice sent, was received back as unclaimed, or, that the same was received back, by the complainant/respondent. It was, under these circumstances, that the principle of law, was laid down, in C.C. Alavi Haji's, and, M/s Mehak Steel Rolling Mill's cases (supra), that the petitioner, could pay the amount of dishonoured cheque, within a period of 15 days, from the date of receipt of notice, in the complaint, filed under Criminal Misc. No. M-11092 of 2010 8 Section 138 of the Act. The facts of C.C. Alavi Haji's, and, M/s Mehak Steel Rolling Mill's cases (supra), being clearly distinguishable, from the facts of the instant case, no help, can be drawn, by the Counsel for the petitioner therefrom. The order impugned, therefore, does not suffer from any illegality or perversity, warranting the interference of this Court. The same is liable to be upheld. 10. For the reasons recorded above, Criminal Misc. No. M-11091 of 2010, being devoid of merit, must fail, and the same stands dismissed. 11. Any observation, made in this order, shall not be taken, as an expression of mind, on merits of the case. 12. The Registry is directed, to comply with the order, by sending the copies thereof, to the Courts concerned promptly. 20.04.2010 (SHAM SUNDER) Amodh JUDGE