Not mentioning date of service of demand notice in the complaint is not fatal to case under Section 138, Negotiable Instruments Act 1881

In the matter of Anil Kumar Goel v. State of UP & Anr. (No. 14190/2014) decided by the Allahabad High Court on 07.06.2021

FACTS: The Respondent No. 2 in the present case presented the cheque given by the Appellant for encashment at Bank of Baroda, Branch Pallavpuram, District Meerut but it was returned with the remark “fund insufficient” vide memo dated 04.09.2012. On 19.09.2012, a legal notice was sent to the applicant. Neither the said notice nor its acknowledgment due returned. On 02.11.2012, again a legal notice was sent to the applicant. There was a presumption of service of the said notice upon the applicant on 04.11.2012. Despite service of notice, the applicant did not make any payment nor sent any reply. The complaint was filed on 19.11.2012. The learned Magistrate after recording the statement under Sections 200 and 202 Cr.P.C. summoned the applicant vide order dated 04.10.2013, under Section 138 of the Act. The Appellant contended before the trial court that as such no date of notice has been mentioned in the complaint and since the date has not been mentioned it is not known from when did the cause of action arise. Thus, the Appellant filed for quashing the entire proceedings of the present complaint.

HELD: Reliance was placed on on the Supreme Court’s verdict in CC Alavi Haji v. Palapetty Muhammed & Anr. where it was held that held that absence of averments in the in the complaint about service of notice upon the accused is the matter of evidence.

“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 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 letter was never tendered or that the report of the postman was incorrect”

Reliance was also placed on Subodh S. Salaskar v. Jayprakash M. Shah & Anr., it was held that any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons.

In this backdrop, the Single Bench of the High Court held that at the stage of summoning, the Magistrate has only to see whether a prima facie case has been made out or not. Further, it held that a complaint for dishonour of cheque under Section 138 of the Negotiable Instruments Act, 1881, cannot be dismissed merely because it does not mention the date on which the demand notice was served upon the alleged defaulter/ drawer at the threshold.