1. Application under Section 482 Cr. P.C has been filed by M/s Jai Durga Enterprises and Dharmendra Singh, applicants against respondent no. 2, M/s Indo Automobiles praying to quash the order dated 2.4.2005 passed in criminal case no. 1113/2005, Indo auto Mobiles v. Jai Durga Enterprises, under Section 138 of Negotiable Instrument Act. P.S Kotwali Nagar, District Saharanpur passed by Judicial Magistrate 1st, Saharanpur whereby the applicants/accused were summoned for trial.
2. Brief facts arising out of this application are that opposite party no. 2, M/s Indo Automobiles filed criminal complaint against the above applicants/accused, wherein it was stated that he was manufacturer of tractors under the name of Indo Firm Equipment Limited and supplying tractors to its customers and under the transaction of said tractor the applicants were liable to pay Rs. 13,22,000/- to which the applicants have given a cheque of Rs. 13,22,000/- dated 29.4.04 to opposite party no. 2.complainant, which was presented by him in his banker and the same was dishonoured by the bank. After the dishonour of the cheque, opposite party no. 2 gave a notice on 18.5.2004 to the applicants, which was not received by the applicants, then, the complainant was filed by opposite party no. 2 against the applicants. Thereafter, statement of complainant was recorded by the court below under Section 200 Cr. P.C Then, he was summoned for the trial for the offence under Section 138 Negotiable Instrument Act. Feeling aggrieved by its, the applicants/accused filed an objection against the summoning order, which was rejected by the court below vide order dated 2.4.2005 Thereafter, this application has been filed in this court.
3. Heard the argument of learned counsels for both the parties and perused the record.
4. It is contended on behalf of the applicants that they did not receive any notice from opposite party no. 2 as provided under Section 138 Negotiable Instrument Act. It is further contended that the applicants have been given only signed and dated blank cheque to opposite party no. 2 and entry made on the said cheque was done, which was made by opposite party no. 2 himself. It cannot be said that the applicants have given any consent to opposite party no. 2. The said cheque was in possession of opposite party no. 2 for collateral security. The said transaction had not only attracted the provision of Section 138 Negotiable Instrument Act but also covered by Section 87 of the Act. The said undated cheque was given by the applicants to respondent no. 2 as security. Therefore, the complaint filed on behalf of opposite party no. 2 was not maintainable and court below has committed illegality in passing the summoning order as no prima facie case was made out against the applicants.
5. On the other hand, it is submitted that there is no illegality in passing the impugned order by the court below. Therefore, this application is liable to be dismissed.
6. So far as the first ground regarding service of notice is concerned, it has been specifically mentioned in the complaint by opposite party no. 2 that one notice under registered post and one notice under U.P.C were sent by opposite party no. 2.complainant to the accused/applicants on 18.5.2004 Notice under registered post had been returned by the postman by endorsing false report while the notice sent under U.P.C was received by him.
7. Therefore, it appears that the notice sent by registered post was not served upon the applicants/accused. It is the admitted case of the complainant/respondent no. 2. So far as the notice sent under U.P.C may be treated as legal notice for the purpose of service.
8. In this regard, it is essential Section 27 of the General Clauses Act, 1897 be produced, which runs as under:—
“Meaning of service by post. - Where any (Central Act) or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression “service” or either of the expression “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 addressing, prepaying 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.”
9. Therefore, it is essential that service upon registered notice should be affected in absence of registered post. It shall not be presumed that there is sufficient service regarding notice sent by U.P.C and it cannot be taken into account under Section 27 of the Act that there was sufficient service upon the accused/applicants. Although, it has been denied by the applicant that no any notice was received by them in the affidavit and same has not been controverted by filing counter-affidavit. Therefore, it is liable to be deemed that there was no sufficient service of legal notice upon the applicants/accused. On this basis, the impugned order passed by the court below is liable to be quashed.
10. So far as the second contention of the applicants is concerned, this has no force. It can be looked at the stage of trial whether the said cheque was given in blank or in security. It has been held in Harbhajan Singh v. State of U.P Criminal Law Journal 2005 page 3029 : (2005 All LJ 1810) Allahabad High Court that:
“Plea taken that cheque was only issued as security — Held, while exercising power under Section 482 Cr. P.C only on basis of pleadings of parties, it cannot be held that blank cheque was given as security-Whether cheque was issued under guarantee or with understanding with parites that as soon as cheque would be presented in bank, same would be encashed-Has to be examined by trial Court after evidence of parties.”
11. Learned counsel for the applicants cited pronouncements in support of his contention :(1) Sri Taher N. Khambati v. Vinayak Enterprises, Secunderabed, 1995 Crl.L.J 560 (Andhra Pradesh High Court), (2) Balaji Seafoods Exports (India) Ltd. v. Mac Industries Ltd., 2000 (1) Bank CLR 564 (Madras High Court) (3) Avon Organics Ltd. v. Pioneer Products Ltd., 2004 (1) Crimes 567 (Andhra Pradesh High Court).
12. The above pronouncements cited on behalf of the applicants are related to the other High Court while the above pronouncement Harbhajan Singh's case (Supra) is related to this Court, which is latest. Therefore, in absence of sufficient service upon the registered notice, prima facie case was not made out for the offence under Section 138 Negotiable Instrument Act. In these circumstances, court below committed illegality in passing the impugned order. Thus, the application is allowed and impugned order is, hereby, set aside and proceedings pending before the court below is hereby quashed.
13. Application allowed.