Cr. M.P. No.3418 of 2013

17th May, 2016

Petitioner Counsel: Mr. MANISH KUMAR
Respondent Counsel: Mr. AWANIKANT PRASAD, A.P.P., Mr. MUKESH KUMAR DUBEY, Mr. ARUN KUMAR PANDEY

Cases Cited:
Shatki Travel and Tours Vs. State of Bihar & Anr., (2002) 9 SCC 415 [Para 4]
V. Raja Kumari Vs. P. Subbarama Naidu & Anr., 2005 ALL MR (Cri) 269 (S.C.)=(2004) 8 SCC 774 [Para 6]

JUDGMENT

JUDGMENT :- Invoking the inherent power of this Court under Section 482 of the Code of Criminal Procedure (in short „the Code ), the petitioner has prayed for quashing of the entire criminal proceeding of Complaint Case No.C/1-123 of 2012 including the order dated 18.02.2012 passed by learned Judicial Magistrate, 1st Class, Jamshedpur taking cognizance of offence under Section 138 of the Negotiable Instrument Act (in short 'the Act').

2. The facts of the case, which is relevant for the purposes of determination of the issue involved in this petition, in short, is that on the basis of a complaint filed by the complainant-Sanjay Kumar, the aforesaid case was instituted with the allegation that the complainant had booked Flat No.310 in Durga Sui Estate, Kalimati, Jamshedpur for a total consideration amount of Rs.17,02,000/- and the complainant out of the said total consideration amount paid a sum of Rs.6,60,000/- to the accused-petitioner who was one of the partners of Kailash Construction, the builder who was engaged in the business of Promoters, Developers and General Order Suppliers, but later on when the complainant came to know that there is some dispute with regard to title and possession of the land in question with TISCO and that the work of the construction of the building has been stopped by the order of the Hon ble High Court, he requested the accused to cancel the booking of the flat and to return the money advanced to him. The accused, thereafter, handed over an account payee cheque of the advance money with an assurance that the cheque will be encashed on its presentation but when the cheque was presented in the concerned bank, it was returned unpaid showing "insufficient fund" in the account which was communicated to the complainant by the banker with cheque return memo dated 29.11.2011. Thereafter, the complainant sent a legal notice to the accused through his lawyer on 19.12.2011 under registered post with A/D but the same was returned with an endorsement of the postal peon "always door locked" and in spite of getting knowledge the accused did not pay the amount to the complainant.

3. It appears from the order impugned dated 18.02.2012 that after examination of the complainant on solemn affirmation and on perusal of the relevant documents, the court finds a prima facie case under Section 138 of the Act against the accused and directed to issue summon to the accused. Hence, this revision.

4. Learned counsel, Mr. Manish Kumar appearing for the petitioner assailing the order impugned by which cognizance of offence has been taken against the petitioner, as bad in law and perverse seriously contended that the basic requirement for initiation of a proceeding under Section 138 of the Act is "service of notice" and if the complainant himself does not show that notice has been served, the entire complaint case requires to be thrown out at the threshold. In support of his contention, the learned counsel strictly relied on the judgment of the Hon ble Supreme Court in the case Shatki Travel and Tours Vs. State of Bihar & Anr.; (2002) 9 SCC 415 and contended that when the complainant has nowhere disclosed in the complaint petition that demand notice has been served, the complaint is not maintainable. As such the order taking cognizance and the entire criminal proceeding is bad in law and fit to be quashed.

5. Contrary to the aforesaid submissions, the learned counsel for the complainant-opposite party no.2 submitted that there is a clear averment in the complaint petition that the notice was sent to the accused on correct address but the same was returned un-served with an endorsement "always door locked" by the postal peon and this clearly indicates that the accused managed to get the said endorsement and merely because the notice has not been duly served, the order taking cognizance cannot be quashed and the effect of the said endorsement shall be considered during trial.

6. Before I enter into the veils of submissions of learned counsels, a reference of Section 138 of the Act is necessary for the proper adjudication of the issue involved in this case. The conditions pertaining to the notice to be given to the drawer have been formulated and incorporated in clauses (b) to (c) of the proviso to Section 138 of the Act. The aforesaid two proviso of Section 138 of the N.I. Act are extracted hereinbelow:-

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice.

On mere reading of the aforesaid two provisions, it is clear that on the part of the payee, he has to make a demand by "giving a notice" in writing and after receiving the notice if the accused or the drawer failed to pay the cheque amount within 15 days from the date of such „giving a notice cause of action arises to initiate a proceeding. The Hon ble Supreme Court in the case V. Raja Kumari Versus P. Subbarama Naidu & Anr. (2004) 8 SCC 774 : [2005 ALL MR (Cri) 269 (S.C.)] while considering a similar issue in which after dismissal of the complaint by trial court on the ground that service of notice under Section 138 of the Act was mandatory and mere sending of notice was not sufficient, upheld the order passed by the High Court that non-service of notice was not a ground for rejecting the complaint and that the effect thereof was to be considered during trial, and dismissed the appeal filed before Hon'ble Supreme Court holding that the burden was on the complainant to show that the accused had managed to get an incorrect endorsement made but the effect of it has to be considered during trial.

7. In the instant case, the court took cognizance of the offence considering prima facie material on record, hence, at the very threshold, the entire complaint case cannot be thrown out on the mere endorsement of the postal peon "always door locked" and the same in view of the mandates given by the Hon ble Supreme court in the above case that the effect of the endorsement shall be considered during trial, I am not inclined to interfere in the order impugned taking cognizance as well as in the entire criminal proceeding. The solitary point raised by the learned counsel for the petitioner is, accordingly, answered. The criminal proceeding of the court below and the order taking cognizance in view of the above discussion, does not require any interference at the very threshold.

8. This criminal miscellaneous petition is, thus, dismissed.

Petition dismissed.