Gujarat High Court
Dilipbhai vs State on 13 October, 2006
Author: R. Tripathi
Bench: Ravi R.Tripathi
CR.RA/715/2006 7/ 7 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No. 715 of 2006 ========================================================= DILIPBHAI N. JOSHI - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MRS KRISHNA G RAWAL for Applicant(s) : 1, HR HL JANI, APP for Respondent(s) : 1, MR JV MEHTA, for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Date : 10/11/2006 ORAL ORDER
1. The Revision Application is filed against judgment and order dated 13.10.2006.
2. The petitioner has filed this Revision Application being aggrieved by judgment and order dated 13.10.2006 in Criminal Appeal No. 13 of 2005 passed by the learned Additional Sessions Judge, Fast Track Court No. 16, Vadodara, whereby the learned Additional Sessions Judge, Fast Track Court No. 16, Vadodara was pleased to confirm judgment and order passed by the learned Judicial Magistrate First Class, Vadodara in Criminal Case No. 1647 of 1999 dated 16.5.2005.
3. The learned JMFC, Vadodara was pleased to convict the present petitioner for an offence under Section 138 of the Negotiable Instruments Act. He was pleased to award six months' simple imprisonment, fine of Rs. 5,000/- and, in default, further three months' simple imprisonment.
The learned JMFC was pleased to order payment of Rs. 50,000/- as compensation to the complainant.
4. The present Revision Application is filed before this Court on 26.10.2006. The same was moved for urgent hearing by filing an urgent note on 27.10.2006. The matter came up for hearing before this Court on 1.11.2006.
The learned advocate for the petitioner Mrs. Krishna G. Rawal submitted that as the applicant was ready and willing to pay the amount, this Court had issued Notice returnable today, i.e. 10.11.2006. The order reads as under:
¿SMs.
Krishna G. Raval, learned advocate for the petitioner states that the petitioner is ready and willing to pay the amount of the cheque dishonoured. She further states that the petitioner was ready and willing to pay that amount right from the beginning.¿¿ Today, when the matter is called out, the learned advocate Mrs. Krishna Rawal reiterated and submitted that the petitioner was ready and willing to pay the amount and is ready and willing to pay even today.
5. After the submissions of Mrs. Krishna Rawal, Mr. J.V. Mehta, learned advocate, appeared for the respondent- original complainant and stated that he has instructions to appear on behalf of the complainant. He submitted that the complainant is never tendered the cheque amount. This shows that the applicant is playing smart with the Court, not only with the Court below but also with this Court.
Despite the fact that the appeal was dismissed on 13.10.2006, he is avoiding his arrest without obtaining any order of enjoying liberty.
7. Mrs. Rawal submitted that, in the present case, there is no cause of action to file any complaint or a case under Section 138 of the Negotiable Instruments Act, 1881. She read Section 138 of the Negotiable Instruments Act, at extenso and emphasised that Clause (c) of Section 138 provides as under:
¿S(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.¿¿ The case of the petitioner, right from the day one, is that he did not receive the notice and, therefore, there is no 'cause of action' in favour of the complainant and, therefore, no case could have been filed against the petitioner.
8. The learned advocate read the relevant part of the judgment of the learned JMFC. At page 50 (internal typed page 12), the learned JMFC has discussed this aspect saying that 'at this stage, it is necessary to record once again that on the part of the accused, defence is taken to the effect that he has not received the notice. As against that, the complainant has proved beyond doubt that notice was sent at the residential address of the accused. Ofcourse the accused is able to bring on record beyond doubt that from 1.5.1999 to 20.12.1999, he was not available at the place of his business and his place of residence and, therefore, notice was not served to him. But, it is a fact that, in this case, a notice by Registered Post A.D. at the office address of the accused, which is Exh. 16, has returned with an endorsement 'unclaim', whereas, notice sent by UPC at the residential address of the accused- Exh.14 is not returned. As per the settled principle, notice is served at the residence of the accused. This inference can be drawn......' Learned advocate Mrs. Krishna Rawal emphatically argued that the case is decided by the learned JMFC on presumption but then such presumption is permissible to be drawn. In case, the learned JMFC does not draw that inference, he will be failing in his duty.
9. Learned advocate Mrs. Krishna Rawal then invited attention of the Court to page 26 (internal page 8, para 15) of the Appellate Court's judgment. The learned Additional Sessions Judge, Fast Track Court, Vadodara has discussed this aspects while discussing Issue No.1, raised by him in para 13. The submissions made by the learned advocate for the accused-appellant before the First Appellate Court, are taken to be the findings recorded by the learned Judge.
The learned Judge has recorded that ¿Sthe learned advocate for the appellant Shri Jamin Patel has argued that under Clause (b) of Section 138, it is mandatory to give a notice within 15 days from the date of receipt of intimation of the return of the cheque. It is further submitted by the learned advocate for the appellant-accused that, if within 15 days from the date of receipt of the notice, amount is not paid then, a complaint has to be filed within one month (these are all the submissions of the learned advocate for the appellant before the First Appellate Court, submission further proceeds). ¿SAccording to his arguments, from the documents produced at Exhs. 47 to 53, the accused was on leave from 1.5.1999 to 20.12.1999, therefore, no notice was served to him, which was sent by the Registered Post A.D.¿¿ (further submission made by the learned advocate follows). ¿SSimilarly, UPC notice sent at his residential address on 15.5.1999 was not received by him. Therefore, there was no cause of action for the complaint filed on 22.6.1999.¿¿(submission then proceeds to say). The complainant knowing well that the accused is not present at his place of service or his residence, malafidely sent notices¿¿. (Next argument is) ¿Sthe complainant in his cross-examination admitted that as the accused was not present in Vadodara and in the company, Notice was sent on 15.5.1999 on the company. That under the provisions of Section 27 of the General Clauses Act, a presumption cannot be drawn that as summons were served at the residential address of the accused, notice also must have been served.¿¿ Learned advocate Mrs. Krishna Rawal argued that, to establish that the notice sent by UPC is served, no personnel from the Postal Department is examined in this regard. She relied upon a decision reported in 2002 Criminal 143 and 2004 BCR 170.
10. The position of law is well settled on the point. A notice sent by UPC is presumed to have been served unless it is returned. No personnel from the postal department is required to be examined to establish that the notice sent by UPC, if not returned, is presumed to have been served.
11. Learned advocate Mrs. Krishna Rawal cited following decisions:
AIR 2001 SC 676 (head note 'B') 2005 (3) GLH 643 2001 (SCC) 397 AIR 1999 SC 3607 (para 8) These decisions are not applicable to the facts of the present case.
12. The learned advocate for the petitioner invited attention of the Court to certain documents, which are produced at Annexure-'B', 'C' and 'D' (page Nos. 35 to 38).
13. This Court finds no substance in the Revision Application and hence, the Revision Application is dismissed.
Sd/-
(RAVI R. TRIPATHI, J.) omkar