- (1.) HEARD learned counsel for the applicant; Sri Vinay Saran for the opposite party No. 2; and the learned A.G.A. for the State.
(2.) BY the present application, the applicant has sought quashing of the proceedings of Complaint Case No. 1117 of 2012, pending in the Court of III A.C.J.M., Gautambudh Nagar under Sections 138 Negotiable Instruments Act, 1881.
(3.) THE learned counsel for the applicant has pressed only two grounds for quashing of proceedings, which are as under: (a) that in the complaint it has not been alleged as to when the notice of demand was served on the accused although the date and mode of dispatch of the notice has been mentioned; (b) that the court at Gautambugh Nagar has no jurisdiction inasmuch as the cheque that returned unpaid was issued within the territorial jurisdiction of Delhi and was also drawn on a Bank within the territorial jurisdiction of Delhi. Sri Vinay Saran, Advocate appearing on behalf of opposite party No. 2 submitted that the mode and the manner by which the notice of demand has been given is detailed in the complaint and is also substantiated on record by copy of the demand notice, receipt showing dispatch of notice by registered post and the statement that the said notice has been served. It has been submitted that the complaint clearly discloses that the notice of demand was sent both at the Registered Office and Corporate Office address of the accused company, which was substantiated by the copy of the demand notice and the postal receipts showing dispatch by registered post. He has placed reliance on a decision of this Court in the case of Vinay Patni v. State of U. P. and another, 2013 80 AllCriC 1, where, in paragraph 13, it has been observed as follows: "13. What is, therefore, required to be seen is whether from the aforesaid material a prima facie case was made out for proceeding against the accused -revisionist. In that regard, the submission of the learned counsel for the revisionist is that in absence of a specific averment with regard to the service of notice of demand it cannot be said that a prima facie case was made out. To the contrary, the submission of the learned counsel for the complainant is that once it is alleged in the complaint that the notice of demand was sent under registered cover to the drawer, and the copy of the notice produced on record discloses the address of the accused, whereas the postal receipt on record discloses dispatch under registered speed post, a presumption, though rebuttable, would be raised that the notice reached its destination, under section 27 of the General Clauses Act as well as under illustration (f) to Section 114 of the Indian Evidence Act, 1872. With regards to the necessity of making averment in the complaint that the notice of demand was served on the drawer, the Apex Court in the case of C. C. Alavi Haji (AIR 2007 SC (Supp) 1705) , in paragraphs 14 and 15 of the judgment, observed as follows: "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 a 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. ...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. 15. Insofar as the question of disclosure of necessary particulars with regard to 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 emphasize that the complainant 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 in 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." In the case of Indo Automobiles, 2009 AIR(SC) 386 , the apex court, after noticing the judgments in the cases of K. Bhaskaran, 1999 AIR(SC) 3762 as well as V. Raja Kumari, 2005 AIR(SC) 109, observed: "It is also well settled that once notice has been sent by registered post with acknowledgment due to correct address, it must be presumed that the service has been made effective." From the observations of the apex court in the decisions noticed above, it is now clear that the complaint cannot be thrown out at the threshold even if it does not make a specific averment with regard to service of notice on the drawer on a given date. If the complaint and the documents in support thereof disclose that the notice was dispatched at the address of the drawer, then the law would raise a presumption, though rebuttable, that the notice has been served on the addressee in due course. The complaint, however, must contain basic facts regarding the mode and manner of the issuance of notice to the drawer of the cheque.";