TMI Blog2022 (9) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... here is non-application of judicial mind - Petition disposed off. - Cr.M.P. No. 1626 of 2022 - - - Dated:- 28-7-2022 - Hon ble Mr. Justice Sanjay Kumar Dwivedi For the Petitioner : Mr. Ajit Kumar, Sr. Advocate, Ms. Aparajita Bhardwaj, Advocate And Ms. Akriti Shree, Advocate For the State : Mr. Manoj Kr. Mishra, A.P.P. For the O.P.No.2 : Mr. A. Allam, Sr. Advocate ORDER This petition has been filed for quashing of entire criminal proceeding in connection with Complaint Case No.744 of 2016 including order taking cognizance dated 17.08.2016 passed by the learned Judicial Magistrate, Ranchi whereby cognizance of offence under section 138 of Negotiable Instruments Act, 1881 has been taken and summons has been directed to be issued against the petitioner, pending in the court of Judicial Magistrate-XXVII, Ranchi. The complaint has been lodged alleging therein that the petitioner on behalf of M/s Media Eleven Pvt. Ltd. approached the respondent bank for a cash credit facility of Rs.1,25,00,000/- in capacity of a Director and accordingly the same was granted to M/s Media Eleven Pvt. Ltd. In view of the repayment of the above said loan the petitioner on behalf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the ordinary course subject to the fulfilment of the conditions laid down therein. Section 27 of the General Clauses Act reads as under: 27. Meaning of service by post .-Where any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression serve or either of the expression give or send or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. 23. Thirty days' time ordinarily must be held to be sufficient for service of notice. In fact when the service of notice is sought to be effected by speed post, ordinarily the service takes place within a few days. Even under Order 5 Rule 9(5) of the Code of Civil Procedure, 1908, summons is presumed to be served if it does not come back within thirty days. In a situation of this nature, there was no occasion for the Court to hold that s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e view expressed therein with certain clarification. We have already quoted the relevant paragraphs from Vinod Shivappa wherein this Court has held that service of notice is a matter of evidence and proof and it would be premature at the stage of issuance of process to move the High Court for quashing of the proceeding under Section 482 CrPC. These observations are squarely attracted to the present case. The High Court s reliance on an order passed by a two-Judge Bench in Shakti Travel Tours is misplaced. The order in Shakti Travel Tours does not give any idea about the factual matrix of that case. It does not advert to rival submissions. It cannot be said therefore that it lays down any law. In any case in C.C. Alavi Haji, to which we have made a reference, the three-Judge Bench has conclusively decided the issue. In our opinion, the judgment of the two-Judge Bench in Shakti Travel Tours does not hold the field any more. Relying on this judgment Mr. A. Allam, the learned Senior counsel submits that in light of section 27 of the General Clause Act even notice is unserved it is deemed to have been served on that address as held by the Hon ble Supreme Court in that case. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is a far stronger presumption. Further, while Section 114 of the Evidence Act refers to a general presumption, Section 27 refers to a specific presumption. For the sake of ready reference, Section 27 of the GC Act is extracted below: 27. Meaning of service by post .-Where any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression serve or either of the expression give or send or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. 14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case has been filed on 21.03.2016, there is strict bar of filing the case in view of clause(c) of section 138 of N.I.Act before expiry of 15 days and if it is so, no cognizance of offence be taken on the basis of such complaint. Reference may be made to the case of Yogendra Singh v. Savitry Pandey , (2014) 10 SCC 713. Paragraph no.34, 35 and 35 of the said judgment are quoted below: 34. Insofar as the present reference is concerned, the debate broadly centres around clause (c) of the proviso to Section 138 of the NI Act. The requirement of clause (c) of the proviso is that the drawer of the cheque must have failed to make the payment of the cheque amount to the payee within 15 days of the receipt of the notice. Clause (c) of the proviso offers a total period of 15 days to the drawer from the date of receipt of the notice to make payment of the cheque amount on its dishonour. 35. Can an offence under Section 138 of the NI Act be said to have been committed when the period provided in clause (c) of the proviso has not expired? Section 2(d) of the Code defines complaint . According to this definition, complaint means any allegation made orally or in writing to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... psed. Therefore, a court is barred in law from taking cognizance of such complaint. It is not open to the court to take cognizance of such a complaint merely because on the date of consideration or taking cognizance thereof a period of 15 days from the date on which the notice has been served on the drawer/accused has elapsed. We have no doubt that all the five essential features of Section 138 of the NI Act, as noted in the judgment of this Court in Kusum Ingots Alloys Ltd. [Kusum Ingots Alloys Ltd. v. Pennar Peterson Securities Ltd., (2000) 2 SCC 745 : 2000 SCC (Cri) 546 : AIR 2000 SC 954] and which we have approved, must be satisfied for a complaint to be filed under Section 138. If the period prescribed in clause (c) of the proviso to Section 138 has not expired, there is no commission of an offence nor accrual of cause of action for filing of complaint under Section 138 of the NI Act. Looking to the cognizance order the Court finds that in a format the blank spaces have been filled up by way of filling of the names of the Bank, name of the accused, cheque number, reason of non- payment, notice date, filing of the case etc. which clearly suggest that there is non-appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Case No.744 of 2016 passed by the learned Judicial Magistrate, Ranchi, pending in the court of Judicial Magistrate- XXVII, Ranchi is set aside. The O.P.No.2-Bank of India which is a public undertaking and admittedly the amount has been taken by the petitioner and in view of that, the O.P.No.2 cannot be allowed to be remediless and the answer to this has already been answered by the Hon ble Supreme Court in the case of Yogendra Singh v. Savitry Pandey (supra), paragraph no.41 of the said judgment is quoted hereinbelow: 41. Section 142 of the NI Act prescribes the mode and so also the time within which a complaint for an offence under Section 138 of the NI Act can be filed. A complaint made under Section 138 by the payee or the holder in due course of the cheque has to be in writing and needs to be made within one month from the date on which the cause of action has arisen under clause (c) of the proviso to Section 138. The period of one month under Section 142(b) begins from the date on which the cause of action has arisen under clause (c) of the proviso to Section 138. However, if the complainant satisfies the court that he had sufficient cause for not making a comp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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