- (1.) Heard Sri Arvind Srivastava, learned counsel for the applicant and Sri B.D. Mandhyan, learned Senior Counsel assisted by Sri J.S. Chauhan for O.P. No.2 and the learned A.G.A. By means of this writ petition, the petitioner has challenged the orders dated 16.1.2010 and 12.12.2012, passed by the courts below, summoning the applicant under Section 138 of the Negotiable Instruments Act (for short "the Act"). Background facts are as under:- The O.P. No.2 lodged a complaint under Section 138 of the Act against the applicant alleging that they were good friends; applicant and her husband claimed to be a leader of a political party; applicant is alleged to have approached O.P. No.2 with an offer to sell a plot in NOIDA for which two installments of Rs.50 lacs each in cash were paid to the applicant on 16.9.2008 and 5.11.2008 respectively in presence of named witnesses, but as the sale could not materialize, the applicant is alleged to have issued four cheques of Rs.25 lacs each bearing Cheque Nos. 644157 and 644158, dated 5.2.2009 and 644155/644156, dated 10.2.2009 and 15.2.2009 respectively, drawn on Punjab National Bank, Modipuram, Meerut in the name of O.P. No.2/payee, which when deposited with the Indian Overseas Bank, Sadarpur, NOIDA, were reported to be dishonoured for want of funds on 7.3.2009. On the request of the applicant, the cheques were again presented before the bankers of O.P. No.2 on 10.7.2009, but were was again returned with the memo of dishonour, for want of funds, on 14.7.2009 followed by a registered statutory notice dated 18.7.2009 and the complaint by O.P. No.2/complainant on 12.8.2009. The O.P. No.2/complainant filed a pre-cognizance affidavit in support of the complaint and other materials. The learned Magistrate after examining the complaint, the affidavit and other materials, summoned the applicant under Section 138 of the Act on 16.1.2010, which was unsuccessfully challenged in Criminal Revision No.65 of 2010 on 12.12.2012.
(2.) Learned counsel for the petitioner made the following submissions: (i) That in the absence of any disclosure of the date of service of the notice in the complaint, the complaint itself was not maintainable. (ii) That no cognizance could have been taken on a complaint which was pre-mature. He relied upon the judgment of the Apex Court in Subodh S. Salaskar. vs. Jay Prakash M. Shah and another, 2008 13 SCC 689 (para-25). (iii) A single complaint was not maintainable in respect of multiple cheques. (iv) That there was no legally recoverable debt as the cheques were given as advance to O.P. No.2 which would not come within the ambit of Section 138 of the Act in view of Sudhir Kumar Bhalla vs. Jagdish Chand, 2008 7 SCC 137. (v) The complaint was not maintainable at Gautambudh Nagar, as the prosecution could only be laid before the court where dishonour of the cheques took place, i.e., at Modi Nagar, Meerut in view of the judgment of the Apex Court in the case of Dashrath Roop Singh Rathore v. State of Maharashtra and others, 2014 9 SCC 129.
(3.) Learned Senior Counsel for respondents and the learned A.G.A have opposed the submissions primarily on the ground that at the stage of summoning, only prime facie case is to be examined, which is made out. (I) Disclosure of the date of service of the notice in the complaint:- The first submission is no longer res integra as the Apex Court in the case C.C. Alavi Haji v. Palapetty Muhammed and another, 2007 6 SCC 555, 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 v. Natthu Singh, 1992 AIR(SC) 1604; State of M.P. v. Hiralal and Ors, 1996 7 SCC 523 and V. Raja Kumari v. P. Subbarama Naidu and Anr, 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. 15. 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 G.C. 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 emphasis 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.;