JUDGMENT
O.P. Jain, J.
1. The above six cases are being disposed of by a common judgment because the facts and law applicable to them are almost identical.
2. Six cases were instituted by the opposite party, Beerbal Dass Zindal, against applicant No. 2, Rajendra Prasad Malviya, the proprietor of S. K. Trading Company, under Sections 138 and 142 of the Negotiable Instruments Act, 1881, and Section 409 of the Indian Penal Code, 1860. For purposes of mentioning the facts of the case, the complaint filed by Beerbal Dass Zindal, in Criminal Miscellaneous Case No. 894 of 1992 is treated as the leading case. According to annexure 1 to the affidavit filed in support of the application under Section 482 of the Criminal Procedure Code, 1973, (hereinafter called “the petition”) Beerbal Dass is the managing director of Nath Roller Flour Mill, Muzaffarnagar. The said mill used to supply maida, sooji and flour, etc., to the accused, S. K. Trading Company, and Rajendra Prasad Malviya is the selling agent of the mill. After the sale of the goods the accused used to make payment by draft and cheques etc., from time to time. On March 15, 1991, the accused, Rajendra Prasad Malviya, issued a cheque for fifty thousand rupees drawn on Punjab National Bank, Khari Baoli, Delhi, to the office of the mill. The cheque bore the signature of the accused, Rajendra Prasad Malviya, and the rubber stamp of S. K. Trading Company. The mill gave the cheque to its banker,
Union Bank of India, Muzaffarnagar, for collection but it was dishonoured because there was no sufficient balance in the account of the accused. This information was communicated to the mill by its banker on October 2, 1991.
3. On October 6, 1991, the mill served a notice on the accused through its advocate, Sri Ramesh Chandra. The notice sent by registered post with A.D. as well as by U.P.C. at the office as well as at the residential address of the accused, Rajendra Prasad Malviya, was served on him but he did not make payments even after a lapse of fifteen days from the date of the receipt of notice. Therefore, the complaint under Section 138/142 of the Act and 409 of the Indian Penal Code, was filed by the mill through its managing director, Beerbal Dass, on September 8, 1991.
4. After recording the statement of Beerbal Dass under Section 200 of the Criminal Procedure Code, a summoning order was passed by the C.J.M., Muzaffarnagar on October 31, 1991, An application was filed by the complainant that the accused may evade the service of summons and may abscond and, therefore, the learned C.J.M. issued a non-bailable warrant against the accused.
5. Before proceeding further, the particulars of all the six cases may be mentioned as under :
* * * * 6. The present applications under Section 482 of the Criminal Procedure Code, 1973, have been filed for quashing the above six complaints. 7. Learned counsel for the applicant and learned counsel for non-applicant No. 1 as also the learned A.G.A. have been heard.
8. The only contention that has been advanced on behalf of the applicant in each case is that the complaint filed by the mill does not disclose the date on which the notice is said to have been served on the accused and, therefore, the complaint is not maintainable. This argument has been advanced particularly in Criminal Miscellaneous Case No. 6111 of 1992. So far as the remaining three Applications Nos. 6109, 6110 and 6112 of 1992 are concerned, the contention is slightly different and it will be mentioned at a later stage.
9. In order to appreciate the contention raised on behalf of the applicant, the provisions of Sections 138 to 142 of the Negotiable Instruments Act should be summarised. Section 138 of the Act lays down that where any cheque is drawn by a person for discharge of any debt or other liability
and the cheque is returned by the bank due to insufficiency of funds in the account of the drawer of the cheque, such person shall be deemed to have committed an offence under Section 138 of the Act. Section 138 has three provisos which lay down that this Section shall apply only where the cheque has been presented to the bank within a period of six months, and where the cheque is dishonoured a notice is issued to the drawer of the cheque within fifteen days of the receipt of information of dishonour and the drawer failed to make payment within fifteen days of the receipt of the notice.
10. The contention of learned counsel for the applicant is that since only the date of issue of notice is mentioned in the complaint, no offence can be said to be made out because there is no starting point from which the period of 15 days, prescribed under Clause (c) should be counted. It is argued that an offence is made out only when the drawer fails to make payment within 15 days of the receipt of notice issued under Clause (1)(c), Since the date of service of notice under Clause (c) is not mentioned in the complaint, it cannot be said that the drawer of the cheque failed to make payment within 15 days of the receipt of notice.
11. I have given my careful consideration to this argument, but I find myself unable to accept this as correct.
12. In the three cases mentioned above, notices were issued by the complainant to the accused by registered post with acknowledgment due as well as by U.P.C. and the acknowledgment receipt has been received by the sender and it bears some initial but no date is mentioned by the person receiving the notice. When no date is mentioned in the acknowledgment receipt the complainant was not expected to mention it in the complaint. It is argued by learned counsel for the applicant that the complainant should have made enquiries from the post office regarding the date of delivery of the notice and he should have mentioned the same in the complaint. In my opinion, it is not reasonably possible for the complainant to do so because Section 142 of the Act lays down a bar of limitation for filing the complaint. The notice was sent by the complainant from Muzaffarnagar to the accused who resides at Delhi, In order to ascertain the actual date of delivery from the post office, the complainant would have to go to Delhi or to send a letter to the concerned post office. It would have been very difficult for the complainant to obtain this information within a month. In a big city like Delhi, the complainant would have to make inquiry about the delivery zone and the post office of the area where the accused resides, Then the complainant will be
required to file some application and the post office may take its own time to supply the information to the complainant. Therefore, in my opinion, the mere fact that the date of delivery of notice under Clause (c) of the proviso is not mentioned in the complaint, does not affect the maintainability of the complaint.
13. It has already been mentioned above that the complainant sent the notice not only by registered post but also by U.P.C. In the case of notice sent by U.P.C. there is a presumption that unless it is returned to the sender it has reached the addressee within a reasonable time. In the Commentary on the Law of Negotiable Instruments Act by Dr. P.W. Rege, this question has been considered at page 2019 and on the basis of some decided cases the learned author has come to the conclusion that the principles of constructive service of notice can be applied to such cases, as held in [1992] Crl. LJ 507 (sic). Where the notice is sent by certificate of posting, the period of 15 days should start from the date on which the notice is reasonably expected to reach the accused. The law does not require that the notice should actually be served on the accused. Mere sending of notice at the correct address is sufficient and if the accused refuses to accept the notice or omits to mention the date of receipt, the complainant cannot be held responsible for such action or omission on the part of the accused.
14. The contention that the offence is not committed till the notice under Clause (c) of the proviso is served and the drawer fails to make payment within 15 days of the said service, is not correct. Section 138 of the Act clearly says that as soon as the cheque is returned by the bank unpaid due to insufficiency of funds such person shall be deemed to have committed an offence . . . and be punished with imprisonment for a term . . . Therefore, the commission of the offence is complete as soon as the cheque is dishonoured. The period of 15 days given in Clause (c) of the proviso is just to give one more opportunity to the drawer of the cheque to escape punishment provided by Section 138 of the Act.
15. Therefore, in my opinion, the mere omission of the date of service of notice under Clause (c) of the proviso does not make the complaint not maintainable. The service of notice and the date thereof is a question of fact which can be determined by producing the postal record and other evidence.
16. So far as the remaining three cases, i.e., Cases Nos. 6109, 6110 and 6112 of 1992 are concerned, notices have been served on the accused on
November 11, 1991, when the accused, Rajendra Prasad Malviya was in jail and he was released from jail on November 13, 1991. In view of the personal service on the accused, learned counsel for the applicant has not pressed these three applications and his arguments were confined to the remaining three applications given above.
17. A perusal of the applications shows that some allegations were levelled against the C.J.M. but learned counsel for the applicant has not referred to any such allegation during the argument and has presumably given up the same. It, however, appears from the complaint, annexure “1”, that in para 2, the allegation of the accused being the selling agent of the complainant has been made as an afterthought. Similarly, in para 5 of the complaint, some allegation has been introduced at the last moment to make out a case under Section 409 of the Indian Penal Code, 1860. The whole complaint is a typed document and in the heading Section 409 of the Indian Penal Code, 1860, has been added in manuscript ; similarly in paragraphs 2 and 6 of the complaint some allegations have been added so that Section 409 of the Indian Penal Code, 1860, may become applicable. It was perhaps for this reason that a non-bailable warrant was issued on the application of the complainant that the accused is likely to abscond.
18. Taking into consideration all these facts, I am of the opinion that no case under Section 409 of the Indian Penal Code, 1860, is made out against the accused applicant and the issue of the non-bailable warrant was totally unjustified.
19. In the result, all the six applications are partly allowed and while setting aside the summoning order dated October 31, 1991, so far as it relates to Section 409 of the Indian Penal Code, 1860, summoning of the accused under Section 138/142 of the Negotiable Instruments Act, 1881, is upheld. It is directed that the non-bailable warrant issued against the accused will be withdrawn and he may be summoned by a bailable warrant.
