Alka Sinha vs State Of Jharkhand And Ors

I.A. No.2839 of 2019

This interlocutory application has been filed under Section 378 (4) of the Code of Criminal Procedure, 1973 for grant of special leave to present this acquittal appeal which has been preferred against the judgment of acquittal dated 20.12.2018 passed by Learned Judicial Magistrate, 1st Class, Ranchi passed in Complaint Case No.1897 of 2016 corresponding to T.R. No.287 of 2017.

Learned counsel for the appellant submits that the learned trial court acquitted the respondent No.2 who was the accused in the complaint principally on two grounds; first is that the complainant has failed to prove service of notice on the respondent No.2-accused person and the second ground is that there is contradiction in the amount of money taken by the respondent no.2-accused person that is Rs.26,50,000/- and the amount for which the cheque has been issued that is Rs.25,00,000/-.

In support of its case, learned counsel for the appellant relied upon the judgment of Hon'ble Supreme Court of India passed in the case of C. C. Alavi Haji versus Palapetty Muhammed and Another reported in (2007) 6 SCC 555 whose paragraphs- 15, 17 and 18 read as under:-

Insofar as the question of disclosure of necessary particulars with regard to the issue of notice in terms of proviso (b) of Section 138 of the Act, in order to enable the court to draw presumption or inference either under Section 27 of the GC Act or Section 114 of the Evidence Act, is concerned, there is no material difference between the two provisions. In our opinion, therefore, when the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of Clause (b) of proviso to Section 138 of the Act stands complied with. It is needless to emphasise that the complaint must contain basic facts regarding the mode and manner of the issuance of notice to the drawer of the cheque. It is well settled that at the time of taking cognizance of the complaint under Section 138 of the Act, the court is required to be prima facie satisfied that a case under the said section is made out and the aforenoted mandatory statutory procedural requirements have been complied with. It is then for the drawer to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the cover was incorrect or that the letter was never tendered or that the report of the postman was incorrect. In our opinion, this interpretation of the provision would effectuate the object and purpose for which proviso to Section 138 was enacted, namely, to avoid unnecessary hardship to an honest drawer of a cheque and to provide him an opportunity to make amends.

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 Section 27 of the GC 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 Bhaskaran case 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.

In the instant case, the averment made in the complaint in this regard is:

"Though the complainant issued lawyer's notice intimating the dishonour of cheque and demanded payment on 4-8-2001, the same was returned on 10-8-2001 saying that the accused was 'out of station'."

True, there was no averment to the effect that the notice was sent at the correct address of the drawer of the cheque by "registered post acknowledgement due".

But the returned envelope was annexed to the complaint and it thus, formed a part of the complaint which showed that the notice was sent by registered post acknowledgement due to the correct address and was returned with an endorsement that "the addressee was abroad". We are of the view that on facts in hand the requirements of Section 138 of the Act had been sufficiently complied with and the decision of the High Court does not call for interference." (Emphasis Supplied)

Learned counsel for the petitioner further submits that the respondent No.2-accused person has not deposited the cheque amount within 15 days of his appearance in this case hence it is not open for the accused person to take the plea that notice was not duly served upon him. It is then submitted that since the amount of cheque is less than the amount of money taken by the accused person from the complainant so that cannot be a ground for dismissing the appeal more so because in the agreement which has been marked Exhibit-1, the accused person has endorsed the amount by putting his signature. But it is fairly submitted by the learned counsel for the appellant that admittedly there is no proof of service of notice issued upon the accused person of the case and the notice was issued on 27.06.2016 without waiting for 45 days, the complaint has been filed on 30.07.2016. But the same has happened because of ignorance of law on the part of the complainant. Hence, it is submitted that the appellant be given special leave to present this acquittal appeal.

Learned Addl. P.P. on the other hand defended the impugned judgment and submitted that it is a settled principle of law that in case there is no proof of service of notice issued by the payee of the cheque to the drawer of the cheque and the postal receipt of the same is produced, the complaint should be filed at least 45 days after the date of issuing the notice. But as admittedly in this case the complaint has been filed before 45 days of the issue of the notice hence the complaint is premature and is liable to fail.

Hence, it is submitted that the special leave for presenting this appeal ought not to be given to the appellant.

It is a settled principle of law that the period of reckoning of 15 days as required under Section 138 (c ) read with section 142 of the N.I. Act in a case where the complainant cannot bring on record any evidence as to when the notice of demand of the cheque amount was received by the accused is to start from the 30th day from the date of dispatch of the demand-cum-legal notice hence the complaint at the earliest can be filed only after 45 days from the date of dispatch of demand notice as has been held by the Hon'ble Supreme Court of India in the case of Subodh S. Salaskar vs. Jayprakash M. Shah and Another reported in 2009 (3) SCC (Cri) 834 paragraph no. 25 of which reads as under:-

"25. The complaint petition admittedly was filed on 20-4-2001. The notice having been sent on 17-1-2001, if the presumption of service of notice within a reasonable time is raised, it should be deemed to have been served at best within a period of thirty days from the date of issuance thereof i.e. 16-2-2001. The accused was required to make payment in terms of the said notice within fifteen days thereafter i.e. on or about 2-3-2001. The complaint petition, therefore, should have been filed by 2-4-2001."

Having heard the submissions made at the Bar and after carefully going through the records, I find force in the submission of the learned counsel for the State that the complaint is premature having been admittedly filed before 45 days from the date of issue of notice by the payee of the cheque to the drawer of the cheque under registered post and admittedly there is no document in the record showing the date of receipt of the notice by the accused. So, this Court is of the considered view that this is not a fit case where the appellant be given special leave to present this appeal. Accordingly, this Interlocutory application, being without any merit is rejected and consequently, this Acquittal Appeal No.40 of 2019 is also dismissed.