M/S. Indo Automobiles
Vs. M/S. Jai Durga Enterprises & Ors. [2008] INSC 1131 (15 July 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1101 OF 2008
(Arising out of SLP (Crl.) No.3650 of 2006) M/s. Indo Automobiles
...Appellant(s) Versus M/s. Jai Durga Enterprises & Ors. ...Respondent(s)
ORDER
1.
Leave
granted.
2.
This
appeal is directed against an order dated 17th of May, 2006 passed by the High
Court of Judicature at Allahabad in Criminal Misc. Application No.11313 of
2005.
3.
In
spite of due service, no one has appeared before us to contest this appeal.
4.
We
have heard the learned counsel for the appellant and perused the materials on
record.
5.
A
proceeding under Section 138 of the Negotiable Instruments Act was initiated
against the respondents. In the said proceeding, the Judicial Magistrate, First
Class, Saharanpur passed an order summoning the respondents for trial.
Challenging the aforesaid order, an application under Section 482 of the Code
of Criminal Procedure was moved by the respondents for quashing the summons.
The High Court by the impugned order had quashed the said proceeding on the
ground that no notice was served on the respondents.
6.
Feeling
aggrieved, this Special Leave Petition was filed which, on grant of leave, was
heard in the presence of the learned counsel for the appellant.
7.
Having
considered the materials on record and after hearing learned counsel for the
appellant, we are of the view that the impugned Judgment of the High Court
cannot be sustained for the reasons stated hereinafter.
8.
Admittedly,
notice under Section 138B of the Negotiable Instruments Act was sent to the
respondents through registered post and under a certificate of posting on their
correct address of the respondents. The High Court had quashed proceeding on
the ground that although notice through registered post and also under
certificate of posting were sent by the appellant/ complainant to the
respondents but because of the endorsement of the postal peon, the service
could not be said to have been effected. In our view, the High Court was not
justified in holding that service of notice could not be found to be valid. In
K.Bhaskaran vs. Sankaran Vaidhyan Balan & Anr. [1999 (7) SCC 510], it has
been held that the context of section 138B of the Negotiable Instruments Act
invites a liberal interpretation favouring the person who has the statutory
obligation to give notice under the Act because he must be presumed to be the
loser in the transaction and provision itself has been made in his interest and
if a strict interpretation is asked for that would give a handle to the
trickster cheque drawer. It is also well settled that once notice has been sent
by registered post with acknowledgment due in a correct address, it must be
presumed that the service has been made effective. We do not find from the
endorsement of the postal peon that the postal peon was at all examined. In V.
Raja Kumari vs. P. Subbarama Naidu & Anr. [2004 (8) SCC 774], again this Court
reiterated the same principle and held that the statutory notice under Sections
138 and 142 of the Negotiable Instruments Act, 1881 sent to the correct address
of the drawer but returning with the endorsement must be presumed to be served
to the drawer and the burden to show that the accused drawee had managed to get
an incorrect postal endorsement letter on the complainant and affixed thereof
have to be considered during trial on the background facts of the case.
9.
That
being the position, we are unable to sustain the order of the High Court and
the impugned order is set aside and the proceeding started under Section 138 of
the Negotiable Instruments Act is restored to its original file. The appeal is,
therefore, allowed to the extent indicated above. We, however, make it clear
that at the trial stage on the question of interpretation, postal endorsement
affixed thereof shall be considered on the background facts of the present
case.
...............................J.
[TARUN
CHATTERJEE] New Delhi; .................................J.
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