Allowed

Sarika Sethi v. State Of Uttarakhand Through Principal Secretary Home and Others

Uttarakhand HC28 Oct 2013C482/613/2013

Case brief

AI extract

What is this about?

In a criminal miscellaneous application under Section 482 Cr.P.C., the High Court of Uttarakhand allowed the petition and quashed a summoning order and trial proceedings. The court held that the complaint filed under the Negotiable Instruments Act was time-barred as the specific endorsements on the returned notice indicated service attempt dates from which the limitation period had expired before

What did the court decide?

The summoning order dated 03.04.2013 and the proceedings of Complaint Case No. 817 of 2013 are quashed.

Sarika Sethi Vs State Of Uttarakhand Through Principal… — Cheque Dishonour | Uttarakhand HC (2013)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

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Criminal Misc. Application No. 613 of 2013

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(Under Section 482 Cr.P.C.)

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Sarika Sethi .….…… Applicant

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versus

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State of Uttarakhand and others ………. Respondents

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Mr. Siddharth Singh with Mr. Kuldeep S. Rawal, Advocates, present for the petitioner/applicant. Mr. P.S.Soun, learned AGA, assisted by Ms. Shivali Joshi, Brief Holder, present for the State/respondents no. 1 & 2. Mr. Manish Arora, Advocate, present for the respondent no. 3.

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U.C. Dhyani, J. (Oral)

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The applicant, by way of present petition/application moved under Section 482 Cr.P.C., seeks to quash the summoning order dated 03.04.2013 and the proceedings of Complaint Case No. 817 of 2013, Mukesh Arora vs. Sarika Sethi and another, under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the Act’), pending in the Court of Additional Chief Judicial Magistrate, Roorkee, District Haridwar.

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Complainant/respondent no. 3 filed a complaint against two accused persons including the applicant in the Court of ACJM, Roorkee, for the offences punishable under Sections 420, 120B IPC and Section 138 of the Act read with Section 109 IPC. After recording the statements under Sections 200 and 202 Cr.P.C., coupled with the filing of documents, learned Additional Chief Judicial Magistrate, Roorkee, having found a

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prima facie case against the accused-applicant, summoned her to face the trial under Section 138 of the Act, vide order dated 03.04.2013. Aggrieved against the impugned order of summoning, present application under Section 482 Cr.P.C. was moved by the accused-applicant.

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Learned counsel for the applicant assailed the impugned summoning order on two grounds:

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(a) That the complaint was time barred, and

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(b) The grounds for dishonour of the cheque were outside

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the purview of Section 138 of the Act.

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Learned counsel for the applicant, however, focused his arguments only on the first ground. He contended that as per the averment made in the complaint, respondent no. 3 received the information on 19.05.2012 regarding dishonour of cheque. Notice was issued on 15.06.2012, wherein endorsement was made by the postman on 16.06.2012 with regard to search. 17.06.2012 was Sunday. The postman made endorsements on 18.06.2012 and 19.06.2012 as ‘NOT MET’. The postman made an endorsement on 20.06.2012 and 21.06.2012 as ‘INCOMPLETE ADDRESS’ and ‘ADDRESSEE IS NOT AVAILABLE’. According to learned counsel for the applicant, the notice sent at the correct address is presumed to be served as per Section 27 of the General Clauses Act, 1897 and Section 114 of the Indian Evidence Act. The endorsements of ‘NOT MET’ and ‘NOT AVAILABLE’ also raise presumption of service as per the settled law. As per Section 142 (b) of the Act, limitation for filing complaint had commenced. Even if 21.06.2012 is taken as the last date of

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endorsement, then the period of 15 days, as per Section 138(b) of the Act, expired on 06.07.2012, and likewise, the period of 30 days as per Section 142 (b) of the Act expired on 05.08.2012. The complaint in the instant case was filed on 06. 08.2012.

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It is an admitted fact that the notice is dated 15.06.2012. The postman made an endorsement on 16.06.2012 that the search was being made. 17.06.2012 was a Sunday. The endorsements were made by the postman on 18.06.2012 and 19.06.2012 that ‘ADDRESSEE NOT MET’. The addressee was not found on 21.06.2012. The sender received the communication to this effect on 25.06.2012.

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Learned counsel for the applicant placed reliance upon para 6 of the judgment pronounced by Hon’ble Supreme Court in M/s Madan and Co. v. Wazir Jaivir Chand, AIR 1989 Supreme Court 630. It will be useful to reproduce para 6 of the judgment herein below :

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“We are of opinion that the conclusion arrived at by the courts below is correct and should be upheld. It is true that the proviso to (i) of section 11(1) and the proviso to section 12(3) are intended for the protection of the tenant. Nevertheless it will be easy to see that too strict and literal a compliance of their language would be impractical and unworkable. The proviso insists that before any amount of rent can be said to be in arrears, a notice has to be served through posts. All that a landlord can do is to comply with this provision to post a prepaid registered letter (acknowledgement due or otherwise) containing the tenant’s correct address. Once he does this and the letter is delivered to the post office, he has no control over it. It is then presumed to have been delivered to the addressee under S. 27 of the General Clauses Act. Under the rules of the post office, the letter is to be delivered to the addressee or a person authorised by him. Such a person may either accept the letter or decline to accept it. In either case, there is no difficulty, for the acceptance or refusal can be treated as a service on, and receipt by, the addressee. The difficulty is

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where the postman calls at the address mentioned and is unable to contact the addressee or a person authorised to receive the letter. All that he can then do is to return it to the sender. The Indian Post Office Rules do not prescribe any detailed procedure regarding the delivery of such registered letters. When the postman is unable to deliver it on his first visit, the general practice is for the postman to attempt to deliver it on the next one or two days also before returning it to the sender. However, he has neither the power nor the time to make enquiries regarding the whereabouts of the addressee; he is not expected to detain the letter until the addressee chooses to return and accept it; and he is not authorised to affix the letter on the premises because of the addressee’s absence. His responsibilities cannot, therefore, be equated to those of a process server entrusted with the responsibilities of serving the summons of a Court under Order V of the C.P.C. The statutory provision has to be interpreted in the context of this difficulty and in the light of the very limited role that the post office can play in such a task. If we interpret the provision as requiring that the letter must have been actually delivered to the addressee, we would be virtually rendering it a dead letter. The letter cannot be served where, as in this case, the tenant is away from the premises for some considerable time. Also, an addressee can easily avoid receiving the letter addressed to him without specifically refusing to receive it. He can so manipulate matters that it gets returned to the sender with vague endorsements such as "not found", "not in station", "addressee has left" and so on. It is suggested that a landlord, knowing that the tenant is away from station for some reasons, could go through the motions of posting a letter to him which he knows will not be served. Such a possibility cannot be excluded. But, as against this, if a registered letter addressed to a person at his residential address does not get served in the normal course and is returned, it can only be attributed to the addressee’s own conduct. If he is staying in the premises, there is no reason why it should not be served on him. If he is compelled to be away for some time, all that he has to do is to leave necessary instructions with the postal authorities either to detain the letters addressed to him for some time until he returns or to forward them to the address where he has gone or to deliver them to some other person authorised by him. In this situation, we have to chose the more reasonable, effective, equitable and practical interpretation and that would be to read the words "served" as "sent by post", correctly and properly addressed to the tenant, and the word "receipt" as the tender of the letter by the postal peon at the address mentioned in the letter. No other interpretation, we think, will fit the situation as it is simply not possible for a

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landlord to ensure that a registered letter sent by him gets served on, or is received by the tenant.”

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Reliance was also placed upon C.C. Alavi Haji v. Palapetty Muhammed and another, (2007) 3 Supreme Court Cases (Cri) 236. The question referred to the larger Bench of Hon’ble Supreme Court was :

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“Whether in absence of any averments in the complaint to the effect that the accused had a role to play in the matter of nonreceipt of legal notice; or that the accused deliberately avoided service of notice, the same could have been entertained keeping in view the decision of this Court in Vinod Shivappa case ?”

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The reply was given by the larger Bench of the Hon’ble Apex Court in paragraphs 18 & 19 of the C.C. Alavi Haji v. Palapetty Muhammed and another ( supra ):

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“18. In the instant case, the averment made in the complaint in this regard is: Though the complainant issued lawyers notice intimating the dishonour of cheque and demanded payment on 4.8.2001, the same was returned on 10.8.2001 saying that the accused was out of station. True, there was no averment to the effect that the notice was sent at the correct address of the drawer of the cheque by registered post acknowledgement due. But the returned envelope was annexed to the complaint and it thus, formed a part of the complaint which showed that the notice was sent by registered post acknowledgement due to the correct address and was returned with an endorsement that the addressee was abroad. We are of the view that on facts in hand the requirements of Section 138 of the Act had been sufficiently complied with and the decision of the High Court does not call for interference.

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In the final analysis, with the clarification indicated hereinabove, we reiterate the view expressed by this Court in K.Bhaskaran vs. Sankaran Vaidhyan Balan and Anr.,1999 (39) ACC 844 case and Vinod Shivappa v. Nanda Belliapppa, (2006) 6 SCC 456 case.”

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It will also be useful to quote para 14 of C.C. Alavi Haji v. Palapetty Muhammed and another ( supra ) :

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“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, (1992) 1 SCC 647; State of M.P. vs. Hiralal & Ors., (1996) 7 SCC 523 and V.Raja Kumari vs. P.Subbarama Naidu, (2004) 8 SCC 744]. 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.”

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It was held by the Hon’ble Apex Court in Premchand Vijay Kumar vs. Yashpal Singh and others, 2005 SCC (Cri) 1153, that the period of one month for filing the complaint will be reckoned from the date immediately falling the date on which the period of 15 days from the date of the receipt of the notice by the drawer expires.

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Learned counsel for the respondent no. 3, on the other hand, relied upon K.G. Kailasanathan v. Sajish Babu @ Kuttan and Anr., 2012 (4) Crimes 142 (Ker.) to say that the presumption of 'deemed service' should be drawn reckoning the date on which the sender of the notice was notified that the notice has not been served and hence the limitation for filing complaint should commence from the date of deemed service; namely, the date when the complainant received the returned postal cover or was so informed by the postal authority in case the postal cover was lost. But the said view does not find favour from any pronouncement of the Hon’ble Apex Court.

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It will also be highly useful to go through paragraphs 22, 23 and 24 of the decision of the Hon’ble Supreme Court in K.Bhaskaran vs. SankaranVaidhyan Balan and Anr.,1999 (39) ACC 844 :

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“22. Here the notice is returned as unclaimed and not as refused. Will there be any significant difference between the two so far as the presumption of service is concerned? In this connection a reference to Section 27 of the General Clauses Act will be useful. The Section reads thus:

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Meaning of service by post. - Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression 'serve' or either of the expressions '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

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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.

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No doubt Section 138 of the Act does not require that the notice should be given only by 'post'. Nonetheless the principle incorporated in Section 27 (quoted above) can profitably be imported in a case where the sender has dispatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such non-service. Any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to the strategy of subterfuge by successfully avoiding the notice.

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Thus, when a notice is returned by the sendee as unclaimed such date would be the commencing date in reckoning the period of 15 days contemplated in Clause (c) to the proviso of Section 138 of the Act. Of course, such reckoning would be without prejudice to the right of the drawer of the cheque to show that he had no knowledge that the notice was brought to his address. In the present case the accused did not even attempt to discharge the burden to rebut the aforesaid presumption.”

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In State of MP v. Hiralal and others, 1996 (77) ALR 313 (SC), Hon’ble Apex Court observed that the respondents obviously managed to have the notice returned with the postal remarks ‘not available in the house’, ‘house locked’ and ‘shop closed’. In that view, it must be deemed that the notices have been served on the respondents.

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It will also be profitable to reproduce herein para 18 and 19 of the Judgment rendered by Hon’ble Supreme Court in M/s SIL Import, USA v. M/S Exim Aides Silk Exporters, Bangalore, 1999 Cri.L.J. 2276 (SC):

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“18. The High Court’s view is that the sender of the notice must know the date when it was received by the sendee, for otherwise he would not be in a position to count the period in

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order to ascertain the date when cause of action has arisen. The fallacy of the above reasoning is that it erases the starting date of the period of 15 days envisaged in clause (c). As per the said clause the starting date is the date of ‘the receipt of the said notice’. Once it starts, the offence is completed on the failure to pay the amount within 15 days therefrom. Cause of action would arise if the offence is committed.

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19. If a different interpretation is given the absolute interdict incorporated in Section 142 of the Act that, no Court shall take cognizance of any offence unless the complaint is made within one month of the date on which the cause of action arises, would become otiose.”

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The aforesaid view was affirmed by the Hon’ble Supreme Court in Premchand Vijay Kumar vs. Yahspal Singh and another, 2005 Supreme Court Cases (Crl) 1153, as follows :

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“15. In SIL Import, USA v. Exim Aides Silk Exporters it was held that the language used in Section 142 admits of no doubt that the Magistrate is forbidden from taking cognizance of the offence if the complaint was not filed within one month of the date on which the cause of action arose. Completion of the offence is the immediate forerunner of rising of the cause of action. In other words, cause of action would arise soon after completion of the offence and period of limitation for filing of the application starts running simultaneously.”

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In the instant case, as said earlier, the endorsement on the notice was done on 18.06.2012 and 19.06.2012 as ‘NOT MET’. The computation of time therefore, will start from 18.06.2012. If 18.06.2012 is taken into account, 15 days expired on 03.07.2012. Further 30 days expired on 02.08.2013. The complaint was required to be filed within 30

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days as per Section 142 (b) of the Act. The complainant, therefore, ought to have been filed before 02.08.2012.

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Endorsement was further made on 21.06.2012 that the ADDRESSEE IS NOT AVAILABLE. Even if, for the sake of arguments, 21.06.2012 is taken into account, then 15 days expired on 06.07.2012. Further 30 days expired on 05.08.2012. The present complaint was filed on 06.08.2012. No application for condoning delay was filed in this behalf by the complainant before the Judicial Magistrate concerned. It is, therefore, held that the complaint was time barred.

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As a consequence thereof, the application under Section 482 Cr.P.C. is allowed. The summoning order dated 03.04.2013 and the proceedings of Complaint Case No. 817 of 2013, Mukesh Arora vs. Sarika Sethi and another, under Section 138 of the Negotiable Instruments Act, 1881, pending in the Court of Additional Chief Judicial Magistrate, Roorkee, District Haridwar are hereby quashed.

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It is, however, made clear that this order will not stop the complainant (respondent no. 3 herein) to pursue civil remedies, as may be available to him, before the appropriate forum against the accused-applicant.

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(U.C. Dhyani, J.) 28.10.2013

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Kaushal

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Sarika Sethi v. State Of Uttarakhand Through Principal Secretary Home and Others

Case brief

What is this about?

What did the court decide?

Sarika Sethi v. State Of Uttarakhand Through Principal Secretary Home and Others

Case brief

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What did the court decide?

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