Identical
question came to be considered by the Hon'ble Supreme Court in the case of C.C. Alavi Haji and in para 17 the Hon'ble Supreme Court has observed and held as under :-
It
is also to be borne in mind that the requirement of giving notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving 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 Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, in 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 9(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."1
Gujarat High Court
Dineshbhai vs Manshukhbhai on 10 January, 2012
petition under Section 227 of the Constitution of India has been preferred by the petitioner - original complainant to quash and set aside the impugned judgement and order dtd.2/12/2010 passed by the learned Principal Sessions Judge, Ahmedabad in Criminal Revision Application No.170 of 2010 as well as the order passed by the learned Metropolitan Magistrate, Court No.18, Ahmedabad in Criminal Case No.223 of 2008 dtd.13/1/2010, dismissing the complaint in exercise of powers under section 203 of the Code of Criminal Procedure.
3. Facts
leading to the present petition, in nutshell are as under :-
4. The
petitioner herein -
original complainant filed complaint being Criminal Case No.223 of 2008 against the private respondents herein in the court of learned Metropolitan Magistrate, Court No.18, Ahmedabad for the offence under section 138 of the Negotiable Instruments Act as well as for the offences punishable under sections 406, 420, 120(B) of Indian Penal Code or dishonour of the cheque in question. That the learned Metropolitan Magistrate, Court No.18, Ahmedabad by order dtd.4/4/2009 dismissed the said application. Being aggrieved by and dissatisfied with the order passed by the learned Metropolitan Magistrate, Court No.18, Ahmedabad dtd.4/4/2009 in dismissing the said complaint, petitioner preferred a Criminal Revision Application before the revisional court and the revisional court allowed the said revision application by quashing and setting aside the order passed by the learned Metropolitan Magistrate and remanded the matter to the learned Metropolitan Magistrate. Thereafter, again the learned Metropolitan Magistrate, Court No.18, Ahmedabad dismissed the complaint in exercise of powers under section 203 of the Code of Criminal Procedure by order dtd.30/1/2010 mainly on the ground that statutory notice under
section 138 of the Negotiable Instruments Act was not served upon the accused and also on the ground that no case is made out for the offences punishable under sections 406, 420, 120(B) of Indian Penal Code. That Being aggrieved by and dissatisfied with the order passed by the learned Metropolitan Magistrate, Court No.18, Ahmedabad dtd.30/1/2010 in dismissing the complaint being Criminal Case No.223 of 2008, petitioner herein preferred Criminal Revision Application No.170 of 2010 before the learned City Sessions Court, Ahmedabad, who by his impugned judgement and order dtd.2/12/2010 has dismissed the said revision application confirming the order passed by the learned Metropolitan Magistrate dismissing the complaint. Being aggrieved by and dissatisfied with the impugned orders passed by both the courts below in dismissing the complaint filed by the petitioner - original complainant for the offence punishable under section 138 of Negotiable Instruments Act, petitioner herein - original complainant has preferred the present petition under Article 227 of the Constitution of India.
5. Mr.Gupta,
learned advocate appearing on behalf of the petitioner - original complainant has vehemently submitted that the learned Metropolitan Magistrate has materially erred in dismissing the complaint filed by the petitioner against the private respondents herein for the offence punishable under section 138 of Negotiable Instruments Act on the ground that statutory notice upon the accused was not served. Mr.Gupta learned advocate appearing on behalf of the petitioner has heavily relied upon the decision of the Hon'ble Supreme Court in the case of C.C. Alavi Haji Versus Palapetty Muhammed and Another, reported in 2007 (1) GLH 512, more particularly para 17 of the said judgement and has submitted that if it was the case on behalf of the accused that he had not received the notice sent by post, in that case, it was open for the accused to make payment of the cheque amount within a period of 15 days of receipt of summons from the Court in respect of the complaint under
section 138 of the Act and thereafter it was open for the accused to submit that the complaint is liable to be rejected. Therefore, it is submitted that the learned Magistrate has committed a grave error in dismissing the complaint and the learned revisional court has materially erred in dismissing the revision application and confirming the order passed by the learned trial court. By making above submissions and relying upon above decision, it is requested to allow the present petition.
6. Mr.Meena,
learned advocate appearing on behalf of the private respondent Nos.1 and 2 - original accused has tried to support the orders passed by both the courts below by submitting that admittedly statutory notice upon the accused was unserved with endorsement of "Left House". Therefore, it is submitted that when admittedly statutory notice was not served upon the accused, both the courts below have rightly dismissed the complaint against the accused for the offence under section 138 of the Negotiable
Instruments Act.
7. Mr.Dabhi,
learned Additional Public Prosecutor has requested to pass appropriate order in the facts and circumstances of the case.
8. Heard
the learned advocates appearing on behalf of the respective parties at length.
9. At
the outset, it is required to be noted that the petitioner herein - original complainant has filed the impugned complaint against the private respondents herein - original accused for the offence punishable under section 138 of Negotiable Instruments Act for dishonour of the cheque. It is not in dispute that as such the statutory notice was sent by the petitioner herein -
original complainant to the accused by RP AD, however the said notice returned unserved with endorsement of "Accused Left House". Therefore, it was the contention on behalf of the private respondents - accused that as the statutory notice under
section 138 of the Negotiable Instruments Act was not received by the accused, such a complaint under
section 138 of the Negotiable Instruments Act is not maintainable. The aforesaid has been accepted by the learned Magistrate and consequently the learned Metropolitan has dismissed the said complaint in exercise of powers under section 203 of the Code of Criminal Procedure. The said order has been confirmed by the revisional Court.
11. Identical
question came to be considered by the Hon'ble Supreme Court in the case of C.C. Alavi Haji and in para 17 the Hon'ble Supreme Court has observed and held as under :-
"17. It
is also to be borne in mind that the requirement of giving notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving 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 Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, in 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 9(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."
12. Considering
the above decision of the Hon'ble Supreme Court, it is clear that both the courts below have committed an error in dismissing the complaint. As observed by the Hon'ble Supreme Court, if the drawer - private respondents claim that they did not receive notice sent by Post, they could have within 15 days of receipt of Summons of the Court in respect of the complaint under Section 138 of the Act, made payment of the cheque amount and thereafter could have submitted before the Court that they have made the payment within 15 days of receipt of summons and, therefore, the complaint is liable to be rejected. As observed by the Hon'ble Supreme Court in the said decision, 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 Section 27 of the General Clauses Act and Section 114 of the Evidence Act. Under the circumstances, the learned Magistrate has materially erred in dismissing the said complaint preferred by the petitioner herein - original complainant and revisional court has also committed an error in confirming the order passed by the learned Magistrate. Under the circumstances, the impugned orders passed by both the courts below deserve to be quashed and set aside and the matter is to be remanded to the learned Magistrate for deciding the same afresh, in accordance with law and on merits for the offence punishable under section 138 of Negotiable Instruments Act.
13. In
view of the above and for the reasons stated above, present petition succeeds. The impugned judgement and order passed by the learned Principal Sessions Judge, Ahmedabad in Criminal Revision Application No.170 of 2010 dtd.2/12/2010 as well as the order passed by the learned Metropolitan Magistrate, Court No.18, Ahmedabad in Criminal Case No.223 of 2008 dtd.30/1/2010, are hereby quashed and set aside and the complaint being Criminal Case No.223 of 2008 filed by the petitioner herein -
original complainant, is ordered to be restored to file of the learned Metropolitan Magistrate, Court No.18, Ahmedabad for the offence punishable under section 138 of Negotiable Instruments Act and the private respondents herein shall be tried for the aforesaid offence under section 138 of Negotiable Instruments Act in accordance with law and on merits. All the defences available to the accused under the law are kept open which may be considered by the learned Magistrate at the time of trial in accordance with law and on merits, for which this Court has not expressed any opinion in favour of either of the parties. Rule is made absolute to the aforesaid extent.
[M.R.
SHAH, J.]
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