High Court of Allahabad

Chintamani Jaiswal Vs. State of U.P. and Ors.

MANU/UP/1696/2018

19.04.2018

Criminal

When sender has dispatched notice by post with correct address, then it can be deemed to have been served upon the sendee

The Applicant, through present application moved under Section 482 of Code of Criminal Procedure, 1973 (CrPC), has invoked the inherent jurisdiction of present Court with a prayer to quash the entire proceedings of Criminal Complaint Case under Section 138 Negotiable Instruments Act, 1881 pending in the Court of Chief Judicial Magistrate and further prayed to stay the proceedings in the aforesaid case.

The complaint was filed by the Opposite Party No. 2 against the Applicant with the allegation that, Applicant had given two cheques of Rs. 40,000 each on 19th December, 2000 and those cheques were presented for payment in bank on 19th April, 2001 but the same was returned with the endorsement that, the firm had already been close down and thereby, cheques were dishonoured. The complainant had sent two notices to the Applicant but he did not receive those notices and were returned un-claimed. After recording the statement under Sections 200 and 202 of CrPC and on being satisfied, the process was issued against the Applicant. Feeling aggrieved, Applicant came up before present Court.

In present case, the grounds taken by the Applicant are two-fold. Firstly, that no notice was ever served upon the Applicant nor received by the Applicant. Secondly, the complaint is time barred. So far as the service of the notice is concerned, the notice was returned back with the endorsement despite visiting several times and giving information but the recipient did not meet, hence returned which means that notice was returned as un-claimed. In view of Section 27 of The General Clauses Act, 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 upon the sendee unless, he proves that it was not really served and that he was not responsible for such non-service but in present case, the notice has been returned unclaimed which deemed to have been served upon the applicant. Regarding second ground that, the complaint is time barred is concerned, the notice which was sent by the complainant was returned by the postman by the endorsement dated 26th May, 2001 and complaint was filed on 4th June, 2001 i.e. well within the period of limitation.

The Hon'ble Apex Court in the case of V. Raja Kumari v. P. Subbarama Naidu and another, has held that, the question whether notice as required under Section 138 of the Act, has been served to be decided during trial and the complaint ought not to be dismissed at the threshold on the purported ground that, there was no proper service of notice or service of the notice has not been disclosed in the complaint.

On the basis of material collected by the Investigating Officer, the prima facie offence is made out, therefore, there is no illegality or irregularity in filing the charge-sheet. Most of the submissions made at the bar relate to the disputed questions of fact, which cannot be adjudicated upon by present Court under Section 482 of CrPC. Only in the cases where Court finds that, there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order was not correct, this power may be exercised to prevent the abuse of process or miscarriage of justice. There is no reason to interfere in the proceedings and, therefore, present Court refused to quash the proceedings in the aforesaid case. Accordingly, the application is rejected.

Relevant

V. Raja Kumari v. P. Subbarama Naidu and another, [MANU/SC/0937/2004
: 2004 (8) SCC 774], Union of India v. Prakash P. Hinduja and another, MANU/SC/0446/2003
: AIR 2003 SC 2612

Tags : Notice Service Proceedings Quashing of

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