IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.1687-SBA of 2006 Date of decision: 2nd March, 2010 M/s Verdhman India Products … Appellant Versus Sulkshan Luthra … Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Arun Bakshi, Advocate for the appellant. Mr. B.D. Sharma, Advocate for the respondent. KANWALJIT SINGH AHLUWALIA, J. (ORAL) M/s Verdhman India Products has filed the present appeal against the judgment dated 01.09.2005 rendered by Judicial Magistrate (1st Class), Jalandhar, whereby respondent Sulakhshan Luthra, Prop./Partner M/s Shiva Enterprises, Gurudwara Complex, Shiv Nagar, Jalandhar was acquitted. Briefly stated, a complaint was filed by M/s Verdhman India Products through its partner Sandeep Jain. It was stated therein that the accused respondent had issued a cheque No.766822 dated 23rd October, 1998 worth Rs.22,700/- drawn on the Syndicate Bank, Jalandhar in discharge of its liability. The cheque was presented to the Bank and the same was returned with remarks ‘funds insufficient’ on 26th March, 1999. The cheque was received back by the complainant on 27th March, 1999. The cheque was again presented to the bank on 16th April, 1999 but it was again dishonoured and returned by the Bank with the remarks ‘exceeds Criminal Appeal No.1687-SBA of 2006 arrangements’. The Bank’s endorsement was received by the complainant on 17th April, 1999. On 23rd April, 1999, the complainant issued a notice through his Counsel under registered A.D.-cum-UPC cover and made a demand that the amount of cheque, i.e. Rs.22,700/- be paid within 15 days of the receipt of that legal notice. The registered notice was received back as unserved and it is stated that the UPC was delivered to the accused at the given address. The complainant appeared in the Court as PW-1. He stated that he was a partner of M/s Verdhman India Products. After the accused was summoned, the complainant stepped again into the witness box as CW-2 and reiterated that he was one of the partners of the said firm and was well aware of the facts of the case. The complainant was subjected to cross examination. In cross examination, the complainant stated as under: “I have explained to my counsel that I am the partner of complainant firm. I cannot say if my counsel has mentioned this fact in the complaint. I have not attached any partnership deed with this case. I have not brought the partnership deed, even today in the Court.” This cross examination, concluded on 8th December, 2004. On 22nd March, 2005, statement of the complainant Sandeep Jain, partner of the appellant firm, was recorded. The same reads as under: “Stated that I hereby tender partnership deed Ex.P8 and close my evidence.” The trial Court, after examining the prosecution evidence, statement of the accused under Section 313 Cr.P.C. and examination of defence evidence, acquitted the accused respondent, primarily on two grounds. Firstly, no evidence was brought on the record to prove that the partnership firm was in existence and was a registered one and that the 2 Criminal Appeal No.1687-SBA of 2006 complainant was its partner. Secondly, the trial Court has held that the noticed sent under Registered A.D. cover having been received back unserved, bearing endorsement of the postal authorities to the effect that despite Postman having repeatedly gone, the addressee was not found, has not been proved that the address on the registered cover was correct and that the accused has evaded service. Therefore, there was no service effected upon the accused. Mr.Arun Bakshi, Advocate appearing for the appellant, has drawn my attention to Ex.P8, which is a certified copy of the partnership deep. A perusal of the same reveals that there were four partners and Sandeep Jain complainant was partner No.2. Mr. B.D. Sharma, Advocate appearing for the accused respondent, has argued that when the complainant was being cross examined, at that time, the partnership deed was not available, therefore, no opportunity was available with the accused to assail the authenticity of the same by putting the relevant questions to the witness. Furthermore, it is stated that after the prosecution evidence was concluded, then partnership deed was tendered as Ex.P8. Mr.Sharma has further stated that the mode and proof of the document cannot be dispensed with, therefore, the complainant has not discharged necessary onus to prove the partnership deed. This argument cannot be accepted, as the same is misplaced. Once, the document Ex.P8 was tendered and no objection was raised to its admissibility and the trial had proceeded further, it cannot be said that the document could not be relied upon. The accused had taken no active steps to assail its admissibility or the mode and proof. Once the document was tendered, impliedly it was accepted and was allowed to be brought on the record. Therefore, lateron it cannot be said that the document being inconvenient should be ruled out of the consideration. It is further stated 3 Criminal Appeal No.1687-SBA of 2006 that there is no averment in the complaint, nor any document was produced on record that other partners had authorized the complainant to file the complaint. This argument can also not be accepted. It is in the case of a Company that a resolution is required to be passed. In a partnership firm, each partner’s act on behalf of the firm is valid, therefore, no specific authorization is required for a partner to file a complaint. Mr.Sharma has further drawn my attention to the cross examination of the complainant Sandeep Jain, wherein he has stated as under: “It is correct that the returned envelop attached with the file does not contain any copy of legal notice.” Further, cross examination reveals that the suggestion that legal notice was not sent in the registered A.D. cover was denied. It was further stated that the legal notice was sent by the Counsel. This argument has also lost its sting, as the Hon’ble Apex Court in ‘C.C. Alavi Haji v. Palapetty Muhammed’ 2007(3) RCR (Criminal) 185 has determined the controversy. This Court in Criminal Appeal No. 1152-SBA of 2000 titled ‘M/s Mehak Steel Rolling Mills v. Ram Charan and another’ decided on 19th February, 2010, formulated the following opinion: “The legal position regarding service of notice is now well settled. In ‘C.C. Alavi Haji v. Palapetty Muhammed’ 2007(3) RCR (Criminal) 185, on reference, a three Judge Bench of the Hon’ble Supreme Court of India had conclusively determined the controversy raised in the present petition. To appreciate the question, it will be necessary to reproduce para 2 of the judgment, which reads as under: ‘2. The matter has been placed before the three Judge Bench in view of a Reference made by a two- Judge Bench of this Court, pertaining to the question of 4 Criminal Appeal No.1687-SBA of 2006 service of notice in terms of Clause (b) of proviso to Section 138 of the Negotiable Instruments Act, 1881 (in short ‘The Act’). Observing that while rendering the decision in D. Vinod Shivappa v. Nanda Belliappa, 2006(3) RCR (Criminal) 145 : 2006(3) RCR (Civil) 50 : 2006(2) Apex Criminal 315 : (2006)6 SCC 456, this Court has not taken into consideration the presumption in respect of an official act as provided under Section 114 of the Indian Evidence Act, 1872, the following question has been referred for consideration of the larger Bench: ‘Whether in absence of any averments in the complaint to the effect that the accused had a role to play in the matter of non-receipt of legal notice; or that the accused deliberately avoided service of notice, the same could have been entertained keeping in view the decision of this Court in Vinod Shivappa’s case (supra)?’ Their Lordships, after having formulated the question, answered as under: ‘17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. 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 138 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 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under 5 Criminal Appeal No.1687-SBA of 2006 Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskarans case (supra), if the “giving of notice” in the context of Clause (b) of the proviso was the same as the “receipt of notice” a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of section 138 of the Act.’ Therefore, in view of the law enunciated by Hon’ble Apex Court, proper service of notice is to be presumed. Accused respondent was well within his rights to pay the amount of cheque on appearance before the Summoning Court. Furthermore, in ‘M/s Indo Automobiles v. M/s Jai Durga Enterprises and others’ 2008(4) RCR (Criminal) 842, Hon’ble Apex Court observed as under: ‘8. Admittedly, notice under Section 138B of the Negotiable Instruments Act was sent to the respondents through registered post and under a certificate of posting on their correct address of the respondents. The High Court had quashed proceeding on the ground that although notice through registered post and also under certificate of posting were sent by the appellant/complainant to the respondents but because of the endorsement of the postal peon, the service could not be said to have been effected. In our view, the High Court was not justified in holding that service of notice could not be found to be valid. In K.Bhaskaran v. Sankaran Vaidhyan Balan & Anr., 1999(4) RCR (Criminal) 309; [1999(7) SCC 510], it has been held that the context of section 138B of the Negotiable Instruments Act invites a liberal interpretation favouring the person who has the statutory obligation to give notice under the Act because he must be presumed to be the loser in the transaction and provision itself has been made in his interest and if a strict interpretation is asked for that would give a handle to the trickster 6 Criminal Appeal No.1687-SBA of 2006 cheque drawer. It is also well settled that once notice has been sent by registered post with acknowledgement due in a correct address, it must be presumed that the service has been made effective. We do not find from the endorsement of the postal peon that the postal peon was at all examined. In V. Raja Kumari v. P. Subbarama Naidu & Anr., 2004(4) RCR (Criminal) 933 : 2005(1) Apex Criminal 58 : [2004(8) SCC 774], again this Court reiterated the same principle and held that the statutory notice under Sections 138 and 142 of the Negotiable Instruments Act, 1881 sent to the correct address of the drawer but returning with the endorsement must be presumed to be served to the drawer and the burden to show that the accused drawee had managed to get an incorrect postal endorsement letter on the complainant and affixed thereof have to be considered during trial on the background facts of the case.’ Negotiable Instruments Act, 1881 has not prescribed any mode for effecting service of notice upon the accused. In the present case, notice was sent through registered A.D. and Under Postal Certificate. It is well settled that Under Postal Certificate is proper mode of service. The Hon’ble Apex Court held that when the notice is sent at the correct address then it is deemed to have been served upon the addressee unless it is proved that it was not really served upon him. In the present case, no evidence was led by the accused that notice was not received.” In the present case, letter posted under postal certificate has not been received back. A plea has been raised that the accused had shifted his business premises and the complainant was aware that the accused was residing at different place and the notice was not sent at the correct address. 7 Criminal Appeal No.1687-SBA of 2006 This Court is of the view that as per observations made by Hon’ble Apex Court in C.C. Alavi Haji’s case (supra), accused can still pay the amount of cheque within 15 days. In these circumstances, there is no other option except to remit the matter back to the trial Court to decide the same afresh. Accordingly, the judgment of the trial Court is set aside and the parties are directed to cause their appearance before the trial Court on 22nd March, 2010. The complaint is restored to its original number in the Court of Judicial Magistrate (1st Class), Jalandhar, trying the matters pertaining to the Negotiable Instruments Act. The accused, if so advised, in consonance with the observations made by the Hon’ble Apex Court in C.C. Alavi Haji’s case (supra), may make payment of the cheque amount and submit before the Court that he had made the payment within 15 days from his appearance in that Court. In case the payment is made, the complaint shall be rejected. However, in case the amount is not paid, the argument that no proper service was effected upon the petitioner, will not be available to the accused respondent and he may opt to contest the complaint in accordance with provisions of law. The appeal stands disposed of. [KANWALJIT SINGH AHLUWALIA] JUDGE March 2, 2010 rps 8