1. Heard Sri Amit Daga, learned counsel for the applicant, Sri Priyansh Mishra, Advocate holding brief of Sri Surya Pratap Singh Parmar, learned counsel appearing for opposite party No.2 and Sri Prem Prakash Tiwari, learned AGA for the State.

2. The instant application under Section 482 Cr.P.C. has been filed to quash the Criminal Complaint dated 14.1.2019 as well as entire proceedings of Criminal Complaint Case No.61 of 2019 (Nurul Bashar vs. Mohd.Mohsin) under Section 138 of Negotiable Instruments Act, 1881, Police Station-Bhadohi, DistrictBhadohi, pending before the court of Chief Judicial Magistrate, Bhadohi at Gyanpur.

3. The brief facts of the case are that the firm M/s Evergreen Carpets is a registered proprietorship firm and is involved in the manufacturing, export and sale of carpets. The applicant herein is the proprietor of the firm M/s Universal Carpets and used to purchase the carpets from the M/s Evergreen Carpets. The firm M/s Evergreen Carpets and the firm M/s Universal Carpets, both are the sole proprietorship firms. In connection with the aforesaid business transaction between them the firm M/s Universal Carpets has purchased the carpets worth Rs.1,10,39,676/-. Against the aforesaid purchase the Universal Carpets paid Rs.71,00,000/- to M/s Evergreen Carpets and the balance of Rs.39,39,676/- was due against the Universal Carpets. When M/s Evergreen Carpets demanded the balance amount of Rs.39,39,676/-, a cheque no. 23944651 dated 20.9.2018 of Rs.12,00,000/- of Jammu and Kashmir Bank, Branch Bhadohi was issued by M/s Universal Carpets in favour of M/s Evergreen Carpets. The said cheque was presented for encashment by M/s Evergreen Carpets in its Bank, which was dishonored on 21.11.2018 for the reason 'insufficient funds'. However, when it was discussed with the proprietor of the M/s Universal Carpets he asked to present the said cheque after five days so that the same can be honoured. Relying upon the aforesaid assurance given by the M/s Universal Carpets, M/s Evergreen Carpets again presented the same cheque on 27.11.2018 which was again dishonored on 28.1.2018 for the reason 'insufficient funds'. Thereafter on 19.12.2018, a registered legal notice was issued demanding the cheque amount. Thereupon a complaint under section 138 of the N.I. Act has been filed on 14.1.2019 before the C.J.M. Bhadohi. In the complaint there was no assertion with regard to the fact that as to when the registered legal notice was actually served on the M/s Universal Carpets. The said complaint dated 14.1.2019 has been filed by one Nurul Basar in his own name alleging in the opening paragraph of the said complaint that he is working in the firm M/s Evergreen Carpets as an Accountant and he has been authorized to file the complaint. Aggrieved by the aforesaid complaint lodged by the said Nurul Basar, who was the Accountant of M/s Evergreen Carpets, the instant application under Section 482 Cr.P.C. has been filed by the Proprietor of M/s Universal Carpets, namely, Mohd. Mohsin.

4. Learned counsel for the applicant has raised three broad submissions:

(i) In the instant case, cheque was dishonoured for the reason 'referred to the drawer'. Therefore, he submits that due to aforesaid reason for dishonour of cheque is not covered within the provisions of Section 138 of N.I. Act, 1881. Hence, no offence under Section 138 of N.I. Act is made out against the applicant.

(ii) Learned counsel for the applicant further submits that in the complaint under Section 138, it has been that the legal notice was issued on 19.12.2018 through registered post, however, there is no assertion in the complaint as well as in the statement of complainant recorded under Section 200 Cr.P.C. that when such notice was served on the applicant herein and if the Section 27 of the General Clauses Act, 1897 is considered, the said notice shall be presumed to have been served after the expiry of 30 days, therefore, in the instant complaint filed on 14.12019 is a premature complaint and as no offence will be made out unless the notice is served and after service of notice, 15 days period has expired.

(iii) It is further submitted that the instant complaint case has been lodged by the power of attorney holder of the payee of the cheque in his own name, therefore, the instant complaint is not maintainable for that reason also.

5. With regard to the first submission, learned counsel for the applicant has relied upon the judgment of Apex Court in Raj Kumar Khurana vs. State of (NCT of Delhi) and another, (2009) 6 SCC 72. With regard to the second submission, he has relied upon the judgment of Apex Court in Subodh S. Salaskar vs. Jayprakash M. Shah and another, (2008) 13 SCC 689 and in support of the third submission, learned counsel for the applicant has relied upon the judgment of Apex Court in A.C. Narayanan vs. State of Maharashtra and another, (2014) 11 SCC 790.

6. In view of the aforesaid submissions and the judgments of the Apex Court, learned counsel for the applicant has prayed for quashing of the aforesaid complaint case against the applicant.

7. Per contra, learned counsel for the opposite party No.2 has submitted that once the cheque is issued by the drawer of the cheque and the same is dishonoured by the Bank, the offence under Section 138 of N.I. Act, 1881, is constituted. He further submits that since the notice was sent through the registered post, it has to be presumed to have been served in due course. Further, relying upon the judgment of A.C. Narayanan (supra), he has submitted that the power of attorney is authorized to file the complaint on behalf of its principal.

8. Having heard the rival submissions raised by learned counsel for the parties, this Court has carefully gone through the record of the case and from the record, it is reflected that in the instant case, the cheque was allegedly issued by the applicant on 20.9.2018 for an amount of Rs.12 lakhs, which was presented before the Bank and the same was dishonoured for the reason 'referred to the drawer' thereupon a legal notice dated 19.12.2018 was sent through the registered post on 19.12.2018 and when no payment was made in compliance of the aforesaid notice on 14.1.2019, the complaint case was filed

9. With regard to the first submission advanced by learned counsel for the applicant, it would be relevant to refer the provisions of Section 138 of the N.I. Act, 1881, which reads as under:

"138. Dishonour of cheque for insufficiency, etc. of funds in the account. - Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this section shall apply unless-

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice; in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

Explanation.- For the purposes of this section, debt of other liability means a legally enforceable debt or other liability."

10. In view of the aforesaid provisions, the offence under Section 138 of N.I. Act, 1881, shall be attracted only when a cheque is returned by the Bank unpaid for the reasons;

(i) because of the amount of money standing to the credit of that account is insufficient to honour the cheque, or

(ii) it exceeds the amount arranged to be paid from that account by an agreement made with that bank.

11. In Raj Kumar Khurana (supra), the Apex Court has held as under:

"11. Section 138 of the Act moreover provides for a penal provision. A penal provision created by reason of a legal fiction must receive strict construction (See R. Kalyani v. Janak C. Mehta and DCM Financial Services Ltd v. J.N. Sareen). Such a penal provision, enacted in terms of the legal fiction drawn would be attracted when a cheque is returned by the bank unpaid. Such non-payment may either be:

(i) because of the amount of money standing to the credit of that account is insufficient to honour the cheque, or

(ii) it exceeds the amount arranged to be paid from that account by an agreement made with that bank.

Before a proceeding thereunder is initiated, all the legal requirements therefor must be complied with. The court must be satisfied that all the ingredients of commission of an offence under the said provision have been complied with.

12. The parameters for invoking the provisions of Section 138 of the Act, thus, being limited, we are of the opinion that refusal on the part of the bank to honour the cheque would not bring the matter within the mischief of the provisions of Section 138 of the Act.

13. The court while exercising its jurisdiction for taking cognizance of an offence under Section 138 of the Act was required to consider only the allegations made in the complaint petition and the evidence of the complainant and his witnesses, if any. It could not have taken into consideration the result of the complaint petition filed by the respondent No. 2 or the closer report filed by the Superintendent of Police in the First Information Report lodged by the appellant against him." 

12. So far as the controversy with regard to dishonour of the cheque for the reasons 'referred to the drawer' is concerned, it has been specifically dealt with by a Division Bench of the Supreme Court in the case of Electronics Trade & Technology Development Corpn. Ltd., Secunderabad Vs. Indian Technologists & Engineers (Electronics) (P) Ltd. and another (1996) 2 SCC 739 wherein it has been categorically held by the Apex Court that if the cheques were dishonoured for the reasons (i) referred to the drawer; (ii) instructions for stoppage of payment and stamped; (iii) exceeds agreement, all those conditions are to be covered within the meaning of Section 138 of N.I. Act, 1881, the relevant paragraph 5 of the said judgment is reproduced below:

"5. It would thus be clear that when a cheque is drawn by a person on an account maintained by him with the banker for payment of any amount of money to another person out of the account for the discharge of the debt in whole or in part or other liability is returned by the bank with the endorsement like (l) in this case, "refer to the drawer" (2) "instructions for stoppage of payment" and stamped (3) "exceeds arrangement", it amounts to dishonour within the meaning of Section 138 of the Act. On issuance of the notice by the payee or the holder in due course after dishonour, to the drawer demanding payment within 15 days from the date of the receipt of such a notice, if he does not pay the same, the statutory presumption of dishonest intention, subject to any other liability, stands satisfied." 

13. The aforesaid view has further been affirmed by a Division Bench of the Apex Court in the case of K.K. Sidharthan Vs. T.P. Praveena Chandran and another (1996) 6 SCC 369 and held in paragraph 2 as under:

"2. ……….

This shows that Section 138 gets attracted in terms if cheque is dishonoured because of insufficient funds or where the amount exceeds the arrangement made with the bank. It has, however, been held by a Bench of this Court in Electronics Trade and Technology Development Corpn. Ltd. v. Indian Technologists and Engineers (Electronics (P) Ltd., that even if a cheque is dishonoured because of " stop payment" instruction to the bank, Section 138 would get attracted." 

14. The said view taken by the Apex Court in the case of Electronics Trade and Technology Development Corpn. Ltd. (supra) has further been upheld by a Three Judge Bench of the Apex Court in the case of Modi Cements Ltd. V. Kuchil Kumar Nandi (1998) 3 SCC 249 and in paragraph 16 the Apex Court has held as under:

"16. We see great force in the above submission because once the cheque is issued by the drawer a presumption under Section 139 must follow and merely because the drawer issues a notice to the drawee or to the bank for stoppage of the payment it will not preclude an action under section 138 of the Act by the drawee or the holder of a cheque in due cours. The object of Chapter XVII, which is intituled as "OF PENALTIES IN CASE OF DISHONOUR OF CERTAIN CHEQUES FOR INSUFFICIENCY OF FUNDS IN THE ACCOUNTS" and contains Sections 138 to 142, is to promote the efficacy of banking operations and to ensure credibility in transacting business through cheques. It is for this reason we are of the considered view that the observations of this Court in Electronics Trade & Technology Development Corpn. Ltd. In paragraph 6 to the effect " suppose after the cheque is issued to the payee or to the holder in due course and before it is presented for encashment, notice is issued to him not to present the same for encashment and yet the payee or holder in due course presents the cheque to the bank for payment and when it is returned on instructions, Section 138 does not get attracted", do not fit in with the object and purpose for which the above chapter has been brought on the statute-book." 

15. The judgement of the Apex Court in the case of Raj Kumar Khurana (supra) which has been highly relied upon by the learned counsel for the applicant, in view of the previous binding precedent of the Apex Court and specifically which has been duly approved by the Three Judges Bench of the Apex Court in the case of Modi Cements (supra), in the considered opinion of this Court, the judgements relied upon by the learned counsel for the applicant is per in-curium, in view of the judgement of Three Judges Bench in the case of Modi Cements (supra).

16. Thus, from the specific judgments in the cases of Electronics Trade & Technology Development Corpn. Ltd., Secunderabad (supra), K.K. Sidharthan (supra) and Modi Cements Ltd. (supra), the dishonour of cheque for the reasons 'referred to the drawer' is fully covered under the provision of Section 138 of N.I. Act, 1881. Therefore, the submission in this regard made by learned counsel for the applicant is not sustainable.

17. So far as the other issue with regard to service of notice is concerned, the offence under Section 138 of N.I. Act, 1881, shall be constituted only upon the service of legal notice on the drawer of the cheque and after expiry of 15 days from such service of notice. In the complaint, there is no averment with regard to the fact that when the notice has actually been served on the applicant herein. Therefore, in view of provisions of Section 27 of General Clauses Act, a documents sent through the registered post shall be presumed to have been served after the expiry of 30 days.

18. In Subodh S. Salaskar (supra), the Apex Court has held as under with regard to service of a document through post:

22. In terms of the provisions of the General Clauses Act, a notice must be deemed to have been served in the ordinary course subject to the fulfillment of the conditions laid down therein. Section 27 of the General Clauses Act reads as under:

"27. 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 'serve' 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."

23. Thirty days' time ordinarily must be held to be sufficient for service of notice. In fact when the service of notice is sought to be effected by Speed Post, ordinarily the service takes place within a few days. Even under Order V, Rule 9(5) of the Code of Civil Procedure, 1908, summons is presumed to be served if it does not come back within thirty days. In a situation of this nature, there was no occasion for the Court to hold that service of notice could not be effected within a period of thirty days." 

19. In view thereof, in the instant case, legal notice was sent on 19.12.2018, therefore, for want of any specific averment and proof of service, if the presumption of service of notice in reasonable time is raised, it should be deemed to have been served at best within a period of 30 days, from the date of its post i.e. 17.1.2019. However, in the instant case, the complaint itself has been filed on 14th January, 2019. Thus, prima facie on 14.1.2019, no offence under Section 138 of N.I. Act, 1881, was attracted as after presumed service on 17.1.2019 still 15 days were required for response by applicant. The opposite party No.2 was still required to wait for another 15 days. Therefore, no offence under Section 138 of N.I. Act, 1881, was made out against the applicant on the relevant date when the complaint was filed.

20. Further, the complaint has been filed by the power of attorney holder in his own name. Though the payee of the cheque can maintain a complaint through the power of attorney holder, but such complaint ought to have been filed in the name of payee of the cheque as has also been held in the case of A.C. Narayanan (supra), which has been relied upon by both the parties. In paragraph 31 of the said judgment, the Apex Court has held as under:

"31. In view of the discussion, we are of the opinion that the attorney holder cannot file a complaint in his own name as if he was the complainant, but he can initiate criminal proceedings on behalf of his principal. We also reiterate that where the payee is a proprietary concern, the complaint can be filed:

(i) by the proprietor of the proprietary concern, describing himself as the sole proprietor of the "payee";

(ii) the proprietary concern, describing itself as a sole proprietary concern, represented by its sole proprietor; and

(iii) the proprietor or the proprietary concern represented by the attorney holder under a power of attorney executed by the sole proprietor." 

21. Since in the instant case, the complaint has been filed by the power of attorney holder in his own name and not as the power of attorney holder of the payee of the cheque and further no offence under Section 138 of N.I. Act, 1881, is constituted in view of the failure of the applicant to make assertion with regard to service of notice and on the basis of presumption of service after expiry of 30 days of its sending through registered post, no cause of action has ever arisen to opposite party No.2 to maintain the instant complaint.

22. Therefore, for all the reasons recorded herein above, the instant application under Section 482 Cr.P.C. is allowed and the entire proceedings of Criminal Complaint Case No.61 of 2019 (Nurul Bashar vs. Mohd.Mohsin) under Section 138 of Negotiable Instruments Act, 1881, Police Station-Bhadohi, DistrictBhadohi, pending before the court of Chief Judicial Magistrate, Bhadohi at Gyanpur, are hereby quashed.