2006 ALL MR (Cri) JOURNAL 6
(ALLAHABAD HIGH COURT)

R.C. DEEPAK, J.

Abhinav Chaturvedi Vs.M/S. Mangalik Chemicals

Crl. Misc. W.P. No.6140 of 2005

17th August, 2005

Petitioner Counsel: ANIL BHUSHAN, V. M. ZAIDI, GAUTAM CHOWDHARY
Respondent Counsel: V. P. SRIVASTAVA, MAYANK AGARWAL, SEEMA AGARWAL

Negotiable Instruments Act (1881) S.138 - Dishonour of cheque - Complaint - Maintainability - Statutory notice by Regd. post sent on correct address of petitioner - Address undisputed - Notice returned with endorsement visited several times, receiver could not be found - Petitioner appeared to have information of the notice and possibility of avoidance of receipt of notice not ruled out - Plea of discharge on ground that there was no service of notice cannot be accepted. 2005 ALL MR (Cri) 269 (S.C.) Relied on. (Paras 3, 4)

Cases Cited:
V. Raja Kumari Vs. P. Subbarama Naidu, 2005 ALL MR (Cri) 269 (S.C.) =2005 SCC (Cri) 393 [Para 3]


JUDGMENT

-The present writ petition relates to a complaint under Section 138 Negotiable Instruments Act. The basic issue raised before the Court is the non-compliance of mandatory process of serving of the notice upon the accused/petitioner.

2. Heard S/Sri. V. M. Zaidi, Anil Bhushan, Gautam Chaudhary, learned counsel for the petitioner, Sri. V. P. Srivastava, Seema Agarwal, Mayank Agarwal, learned counsel for the respondent concerned, learned A.G.A. for the State and perused the record.

3. The issuance of cheque of a sum of Rs.60,999.31 and its dishonour from the bank concerned due to insufficient amount in the account of the drawer/petitioner is not in dispute. The drawer/petitioner had an information that the cheque was dishonoured. The registered notice appeared to have been sent on the correct address of the petitioner. Such address is also undisputed. The endorsement of the postal department and the notice to the effect approached/visited several times i.e. on 28-1-2003, 29-1-2003, 30-1-2003, 31-1-2003 & 1-2-2003, the receiver could not be found. (Bar bar jane per praptkarta nahin mila). The copy of the notice with the endorsement is available on the record. The petitioner appeared to have an information of the notice. A possibility of the avoidance of the receipt of the notice cannot be ruled out. The petitioner sought his discharge on the ground that there was no service of such notice upon him cannot be accepted at this stage. In this connection it may be relevant to point out that in case of V. Raja Kumari Vs. P. Subbarama Naidu reported in 2005 SCC (Cri) 393 : 2005 ALL MR (Cri) 269 (S.C.) a registered notice was sent to the accused and it was returned with the endorsement that the door of the house was locked and on this ground the trial Court dismissed the complaint presuming that notice was not served, but the order was set aside by the Hon'ble High Court and the same was confirmed by the Hon'ble Apex Court. In view of the matters, the Courts below did commit no wrong in refusing his prayer. The observations made by the Hon'ble Supreme Court is applicable to the facts and circumstances of the case which is hereby reproduced.

Negotiable Instruments Act, 1881, Ss.138 and 142 - Complaint - Maintainability - Statutory notice sent to the correct address of the drawer but returning with the endorsement that door of the house was locked - In such circumstances, held, High Court rightly held that non-service of the notice could not be a ground for dismissal of the complaint even before the same was numbered - Burden to show that the accused drawer had managed to get an incorrect postal endorsement, held, lies on the complainant and effects thereof have to be considered during the trial on the background facts of the case.

4. Considering the facts and circumstances of the case, the petition lacks merit and is accordingly dismissed.

5. The stay order dated 20-6-2005 shall stand vacated. The trial Court shall proceed expeditiously with the case proceeding.

6. The observations made above in the present writ petition shall not influence the trial Court in any manner whatsoever in deciding the case on merit in accordance with law.

Petition dismissed.