Chandra Rekha Tipathi v. State of U.P. and another) and the summoning order dated
Case Details
Neutral Citation No. - 2023:AHC:122212 1 Court No. - 68 Case :- APPLICATION U/S 482 No. - 28356 of 2022 Applicant :- Chandra Rekha Tripathi Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ashish Kumar Srivastava Counsel for Opposite Party :- G.A.,Ankit Kapoor,Arvind Agrawal Hon'ble Mrs. Manju Rani Chauhan,J. 1. Heard Mr. Ashish Kumar Srivastava, learned counsel for the applicant, Mr. Ankit Kapoor and Mr. Arvind Agrawal, learned counsel for the opposite party no.2 and Mr. Amit Singh Chauhan, learned AGA for the State and perused the records. 2. The present application under Section 482 Cr.P.C. has been filed to quash the order dated 16.06.2022 passed in Cri. Revision No.360 of 2019, (Chandra Rekha Tipathi vs. State of U.P. and another) and the summoning order dated 18.05.2018 as well as the entire proceedings of Complaint Case No.1251 of 2017, under Section 138 of Negotiable Instruments Act, 1881, Police Station-Cantt., District-Varanasi, pending in the Court of the Additional District and Sessions Judge, Court No.1, Varanasi. 3. Brief facts of the case are that the opposite party no.2 filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') against the applicant stating therein that the opposite party no.2 was in business relationship with the
Facts
applicant. The applicant alongwith two other partners of the firm had issued a cheque of Rs.5,00,000/- from Union Bank of India, Branch- Sinthora Bazar, Varanasi, bearing cheque no.003633 dated 08.01.2017 in favour of opposite party no.2. On receipt of the same, opposite party no.2 presented the same before the concerned Bank for encashment on 20.02.2017, but the same was dishonoured due to "Insufficient Fund" on 23.02.2017. The aforesaid information was given to the applicant by the 2 opposite party no.2, but the applicant refused to return the amount as taken by him from the opposite party no.2. Thereafter, opposite party no.2 sent a legal notice to the applicant on 24.03.2017 through registered post, which has been received by the applicant. After the notice neither any amount was paid nor reply was submitted by the applicant, therefore, the present compliant has been filed on 22.04.2017. Subsequently, the learned Magistrate summoned the applicant vide order dated 18.05.2018, under Section 138 of the Act.
Legal Reasoning
the law and at this stage, only a prima facie case is to be seen and the complaint cannot be thrown at the threshold. Therefore, the present application is liable to be dismissed. 6. I have carefully considered the submissions advanced by learned counsel for the parties and have also gone through the material available on record. 7. Before proceeding to consider the respective submissions of learned counsel for the parties, it is useful to extract the provisions of Section 138 of the Act, which is as under:- "138. Dishonor of cheque for insufficiency, etc., of funds in the accounts:- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that (2014) 12 SCC 539 7 8 Crl. Appeal No. 1497 of 2022 (SC) 9 (2008) 4 SCC 54 5 account is insufficient to honor the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both: PROVIDED that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. (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. Explanation: For the purpose of this section, "debt or other liability" means a legally enforceable debt or other liability." 8. The aforesaid section deals with a cheque drawn by a person "for the discharge, in whole or in part, of any debt or other liability." The section does not say that the cheque should have been drawn for the discharge of any debt or other liability of the drawer towards the payee. Thus in complaint under Section 138 of N.I. Act, the Court has to presume that the cheque had been issued for a debt or liability. This presumption is rebuttable. However, the burden of proving that a cheque had not been issued for a debt or liability is on the accused. The applicant being holder of cheque and the signature appended on the cheque having not been denied by the Bank, presumption shall be drawn that cheque was issued for the discharge of any debt or other liability. The presumption under Section 139 is a rebuttable presumption. Before this Court refers to various judgments of the Apex Court considering Sections 118 and 139, it 6 is relevant to notice the general principles pertaining to burden of proof on an accused especially in a case where some statutory presumption regarding guilt of the accused has to be drawn. 9. A Three Judges' Bench of the Hon'ble Apex Court in the case of C.C. Alavi Haji Vs. Palapetty Muhammed and Another10, has held as under:- "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 of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement refused or not available in the house or house locked or shop closed or addressee not in station, due service has to be presumed. [Vide Jagdish Singh Vs. Natthu Singh,3 [AIR 1992 SC 1604]; State of M.P. Vs. Hiralal & Ors.,4 [(1996) 7 SCC 523] and V.Raja Kumari Vs. P.Subbarama Naidu & Anr.,5 [(2004) 8 SCC 774]. It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved. ****** 17. 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 10 (2007) 6 SCC 555 7 presumption to the contrary under Section 27 of the G.C. 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." 10. It is not necessary to aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, the service of notice is deemed to have been effected at the time, at which the letter would have been delivered in the ordinary course of business. In the judgment of the Apex Court in the case of Ajeet Seeds Ltd. vs. K. Gopala Krishnaiah11, reported in 2014 12 SCC 685, the Apex Court has held that absence of averments in the complaint about service of notice upon the accused is the matter of evidence. The paragraph nos. 10 and 11 of the said judgement are reproduced herein below:- "10. It is thus clear that Section 114 of the Evidence Act enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. Section 27 of the GC Act gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. It is not necessary to aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. 11. Applying the above conclusions to the facts of this case, it must be held that the High Court clearly erred in quashing the complaint on the ground that there was no recital in the complaint that the notice under Section 138 of the NI Act was served upon the accused. The High Court also erred in quashing the complaint on the ground that there was no proof either that the notice was served or it was returned unserved/unclaimed. That is a matter of evidence. We must mention that in C.C. Alavi Haji, this Court did not deviate from the view taken 11 (2014) 12 SCC 685 8 in Vinod Shivappa, but reiterated the view expressed therein with certain clarification. We have already quoted the relevant paragraphs from Vinod Shivappa where 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 of the Cr.P.C. 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." 11. Further the Apex Court in Bharat Barrel & Drum Manufacturing Company Vs. Amin Chand Pyarelal12, had considered Section 118(a) of the Act and held that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable and defendant can prove the non- existence of a consideration by raising a probable defence. In paragraph No.12 following has been laid down:- "12. Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under 12 (1999) 3 SCC 35 9 Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its non- existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist......" 12. In its latest judgment, the Apex Court in the case of Basalingappa Vs. Mudibasappa13, specifically in paragraph nos.-23 and 24 has noticed as follows:- "23. We may now notice judgment relied by the learned counsel for the complainant, i.e., judgment of this Court in Kishan Rao Vs. Shankargouda, (2018) 8 SCC 165. This Court in the above case has examined Section 139 of the Act. In the above case, the only defence which was taken by the accused was that cheque was stolen by the appellant. The said defence was rejected by the trial court. In paragraph Nos. 21 to 23, following was laid down:- "21…... 22. …….. "26. …… 27. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant-accused cannot be expected to discharge an unduly high standard of proof." 23. No evidence was led by the accused. The defence taken in the reply to the notice that cheque was stolen having been rejected by the two courts below, we do not see any basis for the High Court coming to the conclusion that the accused has been successful in creating doubt in the mind of the Court with regard to the existence of the debt or liability. 13 (2019) 5 SCC 418 10 How the presumption under Section 139 can be rebutted on the evidence of PW 1, himself has not been explained by the High Court. 24. The above Kishan Rao case was a case where this Court did not find the defence raised by the accused probable. The only defence raised was that cheque was stolen having been rejected by the trial court and no contrary opinion having been expressed by the High Court, this Court reversed the judgment of the High Court restoring the conviction. The respondent cannot take any benefit of the said judgment, which was on its own facts." (Emphasis added) 13. In view of the settled legal position, as noticed above, it is clear that at this stage, only a prima facie case is to be seen and the complaint cannot be thrown at the threshold and the factum of disputed service of notice requires adjudication on the basis of evidence and the same can only be done and appreciated by the trial court. 14. As regards the submission made by the learned counsel for the applicant regarding complaint being premature, the Court is of the opinion that the applicant was summoned by order dated 18.05.2018, therefore, after passage of 15 days from that day, it was obligatory for the applicant to either pay the amount or submit reply to the same. Even otherwise, this application U/s 482 Cr.P.C. challenging the impugned summoning order, has been filed on 25.08.2022, which means that the applicant had knowledge about the aforesaid on 25.08.2022, which can be taken as service of notice upon the applicant, hence the cause of action firstly arose within fifteen days from the date of summoning order and in case the applicant has taken a stand of having no knowledge of summoning order, to show his bona fide, fifteen days after filing of this application, it was obligatory for the applicant to submit reply or pay some amount to the opposite party no.2 towards debt or liability. 15. As regards the submission made by learned counsel for the applicant regarding the statements u/s 200 and 202 Cr.P.C. having been not recorded, the Court feels that the complaint cannot be thrown on technicalities when the signatures on the cheque by all the partners is not 11 disputed and the notice is addressed to all the partners and has been sent through registered post at the office of partnership firm. The fact that the legal notice has been sent through registered post to one of the partners is of no relevance when the same, which is addressed to all the partners, has been sent at the office of partnership firm. 16. It is well settled that for the purpose of quashing of a complaint, the High Court cannot look into the defence of the accused. The Court is only required to see whether on the basis of the averments made in the complaint and the relevant particulars produced by the complainant, there are grounds for proceeding against the accused. Inherent power of quashing criminal proceedings U/s 482 Cr.P.C. should be exercised very sparingly and with great circumspection. It does not confer on the court to act arbitrarily as per its own whims and caprice. At this stage, the Courts could not have gone into the merits and reached a conclusion that there are no existing debt or liability and quash the complaint. Therefore, the basic law is that the complaint under Section 138 of Negotiable Instrument Act cannot be quashed by High Court by taking recourse to Section 482 Cr.P.C, if disputed questions of facts are involved which need to be adjudicated after respective evidence is led by the parties before the trial court 17. On the basis of discussions made herein above, this Court finds that there is no illegality or infirmity in the order dated 16.06.2022 as well as the summoning order dated 18.05.2018 passed by the concerned court below. Therefore, the prayer for quashing the impugned summoning order as well as the entire proceedings of the aforesaid case are refused, as I do not see any abuse of the court's process at this pre-trial stage. 18. In view of the aforesaid, the application is, accordingly, dismissed. Order Date :- 31.05.2023 Jitendra/-
Arguments
4. Learned counsel for the applicant submits that: (i) though the cheque in question has been signed by all the three partners of partnership firm, but the notice dated 24.03.2017 was sent only in the name of partnership firm and one of the signatory of the cheque (the present applicant; Chandra Rekha Tripathi). Without sending any notice to the other signatories/partners of the partnership firm, they have been impleaded in the complaint and also summoned. Thus, the approach of pick and choose adopted by the complainant is against the mandate of Section 141 of N.I. Act1. The aforesaid Section 141 of the Act provides that if the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. (ii) the complaint is premature as there is no whisper in the complaint as to when the notice dated 24.03.2017 was served upon the applicant. In support of his contention, he has relied upon the judgment of Apex Court in the case of Subhodh S. Salaskar vs. Jayprakash M. Shah and another2, wherein it has been held that the time period of deemed service 1 2 “The Act” (2009) SCC (Cri) 834 3 of notice has been presumed to be 30 days from the date of sending notice as per Section 27 of General Clauses Act, 1897 and U/s 114 of Evidence Act 1872. (iii) No statement U/s 200 Cr.P.C. has been recorded, rather, an affidavit in the form of application has been given, which cannot be taken as statement U/s 200 Cr.P.C., therefore, the complaint is not maintainable. (iv) The summoning order has been passed in a mechanical manner without application of judicial mind and without mentioning the details about service of notice as required, therefore, the same is not justifiable in the eyes of law. (v) The concerned Magistrate has failed to consider the provision that in the entire complaint, it has not been stated that the cheque in question was issued towards a legally enforceable debt, which is mandatory as per law. (vi) The revision filed by the applicant has also been dismissed overlooking the entire provisions of Sections 138, 141 & 142 of the Act. Without perusing the records, the revisional court has given finding that statements under Sections 200 and 202 Cr.P.C. were recorded before issuing the summons by the concerned Magistrate, therefore, the entire proceedings are nothing but an abuse process of law, the same is liable to be quashed. (vii) In support of his contentions, learned counsel for the applicant has relied upon the judgements of Apex Court in the cases of Subodh S. Salaskar vs. Jayprakash M. Shah and another3, Harman Electronics Pvt. Ltd. and another vs. National Panasonic India Pvt. Ltd.4, Yogendra Pratap Sing vs. Savitri Pandey and another5, Vijay Kumar Mishra vs. State of U.P. and another6, Indus Airways Pvt. Ltd. & another vs. Magnum 2009 (3) SCC (Cri) 834 2009 (1) SCC 720 3 4 5 AIR 2018 Supreme Court 157 6 2020 (7) ADJ 645 4 Aviation Pvt. Ltd. and another7, Dashrathbhai Trikambhai Patel vs. Hitesh Mahendrabhai Patel & Anr.8 and Krishna Janardhan Bhatt vs. Dattatraya G. Hegde9. (viii), Learned counsel for the applicant, therefore, submits that the present criminal proceedings initiated against the applicant is not only malicious but also amounts to an abuse of the process of the court of law. On the cumulative strength of the aforesaid submissions, it is submitted by learned counsel for the applicant that the summoning order as well as the proceedings of the above mentioned criminal case are liable to be quashed by this Court. 5. On the other hand, learned AGA for the State as well as the learned counsel for the opposite party no.2 has submitted that the summoning order passed by the concerned Magistrate is legal and just in the eyes of