Pardeep Kumar v. Prithvi Raj

Hon(cid:146)ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the petitioner: Mr. Rakesh Jaswal, Advocate. For the respondent: ____________________________________________________ Mr. T.S. Chauhan, Advocate. SURINDER SINGH, J. The petitioner through this petition is seeking quashing of the proceedings initiated on the complaint filed by the respondent under Section 138 of the Negotiable Instrument Act by invoking the provisions of Section 482 of the Code of Criminal Procedure, precisely on the ground that when the first notice of demand was sent by the respondent and was returned by the postal authorities as (cid:147)unclaimed(cid:148) whether the subsequent dishonour of cheque and sending of the second notice Whether reporters of the Local papers are allowed to see the judgment? - 2 - of demand accrued a fresh cause of action and the complaint would be within limitation.

As a matter of fact the cause of action may still arise for prosecution of the drawer of the cheque on the basis of deemed service of notice under clause (c) to Section 138 of the Negotiable Instrument Act. This question has to be answered by reference to the facts of each case. In D. Vinod Shivappa v. Nanda Belliappa, AIR 2006 SC 2179, the Apex Court observed that no rule of universal application can be laid down that in all cases where notice is not served on account of non-availability of the addressee, the Court must presume service of notice.

It is well settled that in interpreting a statute the Court must adopt that construction which suppresses the mischief and advances remedy. The proviso (c) to Section 138 of the Negotiable Instrument Act is meant to protect honest drawers whose cheques may have been dishonoured for fault of others or who may genuinely wanted to fulfill their promise, but on account of inadvertence or negligence failed to make necessary arrangements for the payment of the cheque. This proviso is not meant to protect - 3 - unscrupulous drawers who never intended to honour the cheques issued by them, it being a part of their modus operandi to cheat unsuspecting persons.

In the instant case, the first notice was returned with endorsement (cid:147)unclaimed(cid:148) and subsequent notice of bouncing of the second presentation of the cheque was served on the same address.

In para 12 of the complaint the respondent made an averment that legal notice was served upon the accused at his home address but the same returned back to the counsel for the complainant undelivered being (cid:147)unclaimed(cid:148). This averment is with respect to the first notice. Now it is open to the complainant to prove that the endorsement is not correct and addressee, namely the drawer of the cheque, with knowledge of notice had deliberately avoided to receive the notice. However, the drawer is also at liberty to prove by leading his evidence that the said endorsement is correct. Therefore, in the circumstances the proceedings are not liable to be quashed under Section 482 of the Code of Criminal Procedure on the above - 4 - ground being a matter of evidence, as such the petition is dismissed. The parties are directed to appear before the learned trial Court on 6th July,

2010. Send down the record forthwith. June 21, 2010. (rc) (Surinder Singh), J.