Madras High Court
M/S.Sri Chakra Compactors vs D.Vijaya Kumar on 14 November, 2018
Author: R.Suresh Kumar
Bench: R. Suresh Kumar
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 26.03.2018
Pronounced on : 14.11.2018
CORAM
THE HONOURABLE MR.JUSTICE R. SURESH KUMAR
Crl.A.No.216 of 2015
M/s.Sri Chakra Compactors
A Partnership Firm, Rep. by its
Manager & Power of Attorney Holder,
Mr.P.Kanda Parameswaran
S/o. Palanisamy Gounder,
President Garden,
60 Feet Road, Dharampuram Road,
Tirupur. ... Appellant
Vs
D.Vijaya Kumar ... Respondent
Criminal Appeal filed under Section 378 of the Criminal
Procedure Code, to set aside the Judgment passed in C.A.No.72 of
2014 on the file of the I Additional District & Sessions Judge, Tirupur,
dated 09.02.2015 reversing the Judgment passed in S.T.C.No.609 of
2005 on the file of the Judicial Magistrate No.II, Tirupur, dated
08.10.2014 and convict the accused.
For Appellant : Mr.M.Easan
For Respondent : Mr.S.Baskar
for M/s.Ram & Ram
JUDGMENT
This Appeal has been preferred against the Judgment made http://www.judis.nic.inin C.A.No.72 of 2014 on the file of the I Additional District & Sessions 2 Judge, Tirupur, dated 09.02.2015, reversing the Judgment made in S.T.C.No.609 of 2005 on the file of the Judicial Magistrate No.II, Tirupur, dated 08.10.2014.
2. The appellant herein is the complainant and the respondent herein is the accused and they would be called as complainant and accused respectively for the sake of convenience.
3. The case of the complainant is that, the complainant is a partnership firm dealing with compacting of hosiery cloth on job work basis. One K.K.Periyasamy and one Suguna are the partners of the complainant firm.
4. The accused was one of the partner of M/s. Dress Modes, which was dealing with manufacturing and selling of hosiery garments. In this context, the accused firm entrusted the job of compacting of hosiery cloth on job work basis to the complainant and the complainant also undertaken the said work on credit basis.
5. Because of the said business transactions, according to the book of accounts of the complainant, there had been a due for a sum of Rs.2,32,548/- payable by the accused firm towards the complainant firm.
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6. It is the further case of the complainant that, in order to settle the major portion of the said due of Rs.2,32,548/-, the accused on behalf of the accused firm, namely M/s. Dress Modes had come forward to issue his personal cheque, dated 11.10.2004 in Cheque No.744220, for a sum of Rs.2 lakhs drawn on the Federal Bank Ltd., Tirupur Branch. On the same day, i.e., on 11.10.2004, the accused had issued a letter in the letter pad of the firm called M/s. Dress Modes that, in order to pay the outstanding dues to the extent of Rs.2.3 lakhs payable by M/s. Dress Modes firm, he had given the said cheque from his personal account for a sum of Rs.2 lakhs.
7. When the said cheque dated 11.10.2004 was presented by the complainant at its Bank, namely Indus Ind Bank, Tirupur Branch on 22.11.2004, the said cheque was returned as dishonoured on 26.11.2004 for the reason "Funds insufficient".
8. It is the further case of the complainant that, on receipt of the information given by its Bank, a statutory notice under Section 138(b) of the Negotiable Instruments Act (In short "The NI Act") on 17.12.2004 was sent to the accused demanding to pay the cheque amount within 15 days. However, the said legal notice was returned to the complainant on 24.12.2004 stating that the addressee has left. http://www.judis.nic.in 4 Therefore having knowledge about the dishonour of the cheque and also having knowledge about the legal notice having been issued to him, the accused had not come forward to settle the cheque amount within the stipulated period of 15 days, thereby the accused committed the offence punishable under Section 138 of the NI Act.
9. Therefore, in that circumstances, the complainant filed the complaint before the trial Court, i.e., J.M.No.II, Tirupur, where it was taken on file as S.T.C.No.609 of 2005.
10. Before the trial Court, on behalf of the complainant, its Manager-cum-Power of Attorney Holder, one Kanda Parameswaran was examined as P.W.1. On behalf of the complainant, six documents, i.e., Exs.P.1 to P.6 were marked. On behalf of the accused, two witnesses, i.e., D.W.1 and D.W.2 were examined and on behalf of the accused, Exs.D.1 to D.3, i.e., 3 documents were marked.
11. The trial Court, after having tried the case, has rendered its Judgment, by its order, dated 08.10.2014 by and under which, the trial Court has convicted the accused under Section 138 of the NI Act and sentenced him to undergo Simple Imprisonment for one year and also directed him to pay a sum of Rs.2 lakhs as compensation, failing which the accused has to undergo further Simple Imprisonment for http://www.judis.nic.in 5 three months.
12. Aggrieved over the said Judgment and conviction made against the accused, he preferred appeal in Crl.A.No.72 of 2014 before the I Additional District and Sessions Judge, Tirupur.
13. Having heard the appeal and considered the case of both sides, the first appellate Court, by its Judgment, dated 09.02.2015 has allowed the appeal filed by the accused, by setting aside the Judgment and conviction made by the trial Court. Feeling aggrieved over the said Judgment made by the first appellate court in C.A.No.72 of 2014, dated 09.02.2015, the complainant preferred the present appeal.
14. The grounds urged by the learned counsel appearing for the complainant in this appeal is that, the issuance of the cheque and the signature made therein since had been accepted or not denied by the accused, the initial presumption under Section 118(a) as well as under Section 139 of the NI Act is always in favour of the complainant and therefore based on such a statutory presumption, the trial Court proceeded to dispose the case. While that being so, the first appellate court, without appreciating the statutory presumption already established in favour of the complainant, has simply set aside the Judgment and conviction made by the trial Court. http://www.judis.nic.in 6
15. The learned counsel has further argued that, the first appellate court mainly on the reason of alleged defects in power of attorney document, which empowered the Manager of the complainant to file the complaint and deposed before the trial Court, had come to a wrong conclusion that the complainant not even proved the prima facie case to show that the power of attorney holder, i.e., the Manager of the complainant was empowered to file the complaint and proceed the same.
16. In respect of all these aspect, the learned counsel for the complainant would further submit that, the first appellate court failed to consider the fact that, the accused has not chosen to depose himself before the trial Court on behalf of the accused. The learned counsel would further submit that, the two defence witnesses, i.e., D.W.1 and D.W.2, the Managers of the Bank of the accused firm have not advanced the case of the accused.
17. Per contra, Mr.S.Baskar, learned counsel appearing for the accused would submit that, even though it was claimed by P.W.1, that he was the Manager of the complainant and also the power of attorney holder and in that capacity, he filed the complaint and deposed before the trial Court, the P.W.1 had not chosen to file and http://www.judis.nic.in 7 mark the document, i.e., the power of attorney, which allegedly empowers the Manager of the complainant to maintain his complaint and depose before the trial Court.
18. It was also submitted by the learned counsel appearing for the accused that, the accused never been the partner of the accused firm (M/s. Dress Modes) and this has been proved by virtue of the partnership deed document, which was marked as Ex.D.3. Nevertheless throughout the complaint, it was maintained by the complainant that, the accused was one of the partner of the firm.
19. The learned counsel appearing for the accused would further submit that, since the case of the complainant was that there had been business transaction between the complainant firm and the M/s.Dress Modes, which is no way connected with the accused, it cannot be accepted or presumed that the accused in his individual capacity would be liable to settle the dues payable by the firm called M/s. Dress Modes. Therefore the theory projected by the complainant's side that, in order to settle the due payable by M/s. Dress Modes, the accused has come forward to issue his personal cheque and therefore the accused having knowledge about the said transaction, had voluntarily came forward to settle the dues and in order to substantiate the same, on the same day, i.e., on 11.10.2004, http://www.judis.nic.in 8 the accused had not only issued the cheque but also had issued a letter stating that he was issuing his personal cheque towards the outstanding amount of Rs.2.3 lakhs due by M/s. Dress Modes, is completely unfounded based on evidence.
20. The learned counsel for the accused would further submit that, these aspects had not been properly appreciated by the learned trial Court Judge, however, this aspect had been appreciated based on the evidence and also based on the settled legal principles, by the learned first appellate court Judge in the Judgment impugned and accordingly, the wrong conclusion made by the trial Court has been rightly set aside by the first appellate Court. Hence, the impugned Judgment does not require any interference from this Court.
21. I have considered the said rival submissions made by the learned counsel appearing for both sides and also perused the materials placed before this Court.
22. The case of the complainant before the trial Court was that, there had been a business transaction between the complainant partnership firm called "M/s. Sri Chakra Compactors" and the firm called M/s. Dress Modes. Though it was the case of the complainant, which has been throughout maintained that, the accused was one of http://www.judis.nic.in 9 the partner of the firm, M/s. Dress Modes, it had been proved by the document, Ex.D.3 that the accused was not partner of the said firm M/s. Dress Modes.
23. Based on the outstanding due, out of the business transaction between the two firm, there has been a due to the extent of Rs.2.3 lakhs, for which book of accounts was also filed as Ex.P.1, which discloses the fact that there had been due of Rs.2,32,548/- as on 04.06.2004.
24. It is the further case of the complainant that, in order to settle the said dues of more than Rs.2,32,000/-, the accused came forward to issue his personal cheque and accordingly, on 11.10.2004, the cheque was issued and on the same day, a supporting letter in the letter pad of M/s. Dress Modes had also been issued.
25. I have perused the said cheque, i.e., Ex.P.3 and the letter, dated 11.10.2004, i.e., Ex.P.2. Even though in the cheque in question, it was originally written as K.K.Periyasamy, i.e., one of the partner of M/s.Sri Chakra Compactors and the date also was mentioned as 02.04.2004, the same has been corrected as Sri Chakra Compactors, and the date has been altered as 11.10.2004 and the cheque was issued for a sum of Rs.2 lakhs by the accused. In both the http://www.judis.nic.in 10 places, i.e., correction made in the payee's name and also the date of cheque, the accused had signed. It is pertinent to be noted that, it is not the case of the accused that, he had not issued the cheque on 11.10.2004 and he has also not denied the signature originally he made in the cheque and also the signature he had made to endorse the corrections and alterations made in the cheque for payee's name as well as the date of the cheque.
26. That apart, it is further to be noted that, on the same day, i.e., on 11.10.2004, a letter (Ex.P.2) was issued by the accused on the letter pad of M/s. Dress Modes firm. The letter was addressed to the complainant company, i.e., M/s. Srichakra Compactors, Tirupur, where the letter written by the accused states that, he was issuing his personal cheque, bearing No.744220 for Rs.2 lakhs towards the outstanding amount of Rs.22,32,548/- due by M/s. Dress Modes. This Ex.P.2 was not denied by the accused side.
27. In fact, the accused could have deposed before the trial Court and could have denied the execution of the cheque as well as the letter, dated 11.10.2004, but he had not chosen to be the witness on the side of the defence.
28. Therefore it could be easily concluded that, the accused http://www.judis.nic.in 11 has not denied specifically or opposed the execution of the cheque in question as well as the letter issued by him, dated 11.10.2004 in support of the said execution of the cheque. It can also be safely found that the accused had not denied the signature found in Ex.P.3, the cheque in question and Ex.P.2, the letter, dated 11.10.2004. Thereafter on presentation of the cheque, since the same was returned for insufficiency of funds, statutory notice under Section 138(b) of the NI Act was issued and the said notice sent by registered post was returned with an endorsement with "addressee left".
29. In this context, it is the defence on the side of the accused that, the statutory notice has never been issued or it has never been served on the accused in the manner known to law and therefore in the absence of any statutory notice under Section 138(b) of the NI Act, there could not have been any cause of action for the complainant to file the complaint under Section 138 of the NI Act and therefore on that ground the complaint gets vitiated.
30. It is the further case of the accused that, though it was claimed that P.W.1 was the Manager of the complainant firm and in order to authorise him to file the complaint on behalf of the complainant firm and to depose before the trial Court, a power of attorney, dated 21.01.2005 was executed, the same was not filed http://www.judis.nic.in 12 before the trial Court and therefore in the absence of any valid power of attorney, the Manager of the complainant firm could not have maintained the complaint and therefore on that ground itself, the complaint filed by the complainant firm was defective and therefore the said complaint ought to have been rejected by the trial Court.
31. It is the further case of the accused that, the said aspect of the defect of non-filing proper authorisation, by way of power of attorney before the trial Court, to maintain the complaint by P.W.1, the Manager of the complainant firm, was examined by the first appellate Court in proper perspective and on satisfaction, the first appellate Court on the prima facie case that, there had been no evidence to show that, the P.W.1 was the Manager and he was the power of attorney holder to maintain the complaint, the first appellate court has rightly set aside the Judgment.
32. Therefore two legal issues had been raised in this case. The first one is that, the statutory notice under Section 138(b) of the NI Act was not served on the accused and the second one is that, P.W.1 was not supposed to maintain the compliant on behalf of the complainant firm and he could not have deposed before the trial Court without any authorisation.
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33. In so far as the above said two grounds are concerned, these kind of issues have already been settled in number of decisions. In so far as the first ground of non-service of Section 138(b) notice is concerned, I had an occasion to consider a similar issue in the matter of Sujatha Ramanathan v. Ramya, reported in 2017-2-LW (Crl)
331. In the said case, a similar plea was raised by the complainant that, since Section 138 notice was not directly served on the accused and it was claimed to have been served to the security / sub-staff of the accused, the same cannot be construed as a proper service within the meaning of Section 138(b) of the NI Act and therefore, the said complaint in that case could not have been maintained.
34. In that context, after analysing the Judgments in this regard, I have made the following findings :
"27.Insofar as the said plea raised by the petitioner that notice has not been served properly to the petitioner and since the same has not been served on the petitioner, which is one of the important ingredients under Section 138 of the Negotiable Instruments Act, the complaint as well as the entire proceedings initiated by the respondent under Section 138 of the NI Act is vitiated is concerned, the law in this regard is well settled. In this regard, this Court would like to rely upon a Judgment on this point, in 2007 (6) SCC 555 in the matter of C.C. Alavi Haji vs http://www.judis.nic.in Palapetty Muhammed & Another. In the said Judgment, 14 the Hon'ble Apex Court, by taking recourse to Section 27 of the General Clauses Act, 1897, has held as follows:
8. Since in Bhaskarans case (supra), the notice issued in terms of Clause (b) had been returned unclaimed and not as refused, the Court posed the question: Will there be any significant difference between the two so far as the presumption of service is concerned? It was observed that though Section 138 of the Act does not require that the notice should be given only by post, yet in a case where the sender has dispatched the notice by post with correct address written on it, the principle incorporated in Section 27 of the General Clauses Act, 1897 (for short G.C. Act) could profitably be imported in such a case. It was held that in this situation service of notice is deemed to have been effected on the sendee unless he proves that it was not really served and that he was not responsible for such non-service.
9. All these aspects have been highlighted and reiterated by this Court recently in Vinod Shivappas case (supra).
Elaborately dealing with the situation where the notice could not be served on the addressee for one or the other reason, such as his non availability at the time of delivery, or premises remaining locked on account of his having gone elsewhere etc; it was observed that if in each such case, the law is understood to mean that there has been no service of notice, it would completely defeat the very purpose of the Act. It would then be very easy for an unscrupulous and dishonest drawer of a cheque to make himself scarce for sometime after issuing the cheque so that the requisite statutory notice can never be http://www.judis.nic.in served upon him and consequently he can never be 15 prosecuted. It was further observed that once the payee of the cheque issues notice to the drawer of the cheque, the cause of action to file a complaint arises on the expiry of the period prescribed for payment by the drawer of the cheque. If he does not file a complaint within one month of the date on which the cause of action arises under Clause (c) of the proviso to Section 138 of the Act, his complaint gets barred by time. Thus, a person who can dodge the postman for about a month or two, or a person who can get a fake endorsement made regarding his non availability, can successfully avoid his prosecution because the payee is bound to issue notice to him within a period of 30 days from the date of receipt of information from the bank regarding the return of the cheque as unpaid. He is, therefore, bound to issue the notice, which may be returned with an endorsement that the addressee is not available on the given address. This Court held: We cannot also lose sight of the fact that the drawer may by dubious means manage to get an incorrect endorsement made on the envelope that the premises has been found locked or that the addressee was not available at the time when postman went for delivery of the letter. It may be that the address is correct and even the addressee is available but a wrong endorsement is manipulated by the addressee. In such a case, if the facts are proved, it may amount to refusal of the notice. If the complainant is able to prove that the drawer of the cheque knew about the notice and deliberately evaded service and got a false endorsement made only to defeat the process of law, the Court shall presume service of notice. This, however, is a matter of http://www.judis.nic.in evidence and proof. Thus even in a case where the 16 notice is returned with the endorsement that the premises has always been found locked or the addressee was not available at the time of postal delivery, it will be open to the complainant to prove at the trial by evidence that the endorsement is not correct and that the addressee, namely the drawer of the cheque, with knowledge of the notice had deliberately avoided to receive notice.....
10. It is, thus, trite to say that where the payee dispatches the notice by registered post with correct address of the drawer of the cheque, the principle incorporated in Section 27 of the G.C. Act would be attracted; the requirement of Clause (b) of proviso to Section 138 of the Act stands complied with and cause of action to file a complaint arises on the expiry of the period prescribed in Clause (c) of the said proviso for payment by the drawer of the cheque. Nevertheless, it would be without prejudice to the right of the drawer to show that he had no knowledge that the notice was brought to his address.
....
13.According to Section 114 of the Act, read with illustration (f) thereunder, when it appears to the Court that the common course of business renders it probable that a thing would happen, the Court may draw presumption that the thing would have happened, unless there are circumstances in a particular case to show that the common course of business was not followed. Thus, Section 114 enables the Court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, http://www.judis.nic.in human conduct and public and private business in their 17 relation to the facts of the particular case. Consequently, the court can presume that the common course of business has been followed in particular cases. When applied to communications sent by post, Section 114 enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. But the presumption that is raised under Section 27 of the G.C. Act is a far stronger presumption. Further, while Section 114 of Evidence Act refers to a general presumption, Section 27 refers to a specific presumption. For the sake of ready reference, Section 27 of G.C. Act is extracted below:
27. Meaning of service by post. - Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression serve or either of the expressions 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, pre- paying 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.
.....
.....
17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within http://www.judis.nic.in 15 days of receipt of summons from the court in respect 18 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 (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskarans case (supra), if the giving of notice in the context of Clause (b) of the proviso was the same as the receipt of notice a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act''.
28.The said Judgment in fact has been reiterated and amplified by the Judgment of the Hon'ble Supreme Court reported in 2014 (12) SCC 685, in the matter of M/s. Ajeet Seeds Ltd. v. K. Gopala Krishnaiah, wherein the Hon'ble Apex Court has held as follows:
6. In C.C. Alavi Haji, a three-Judge Bench of this Court was dealing with the question referred by a two-Judge Bench for consideration. The referring Bench was of the view that in D. Vinod Shivappa v. Nanda Belliappa[3], this Court did not take note of Section 114of the Evidence Act in its proper perspective. It felt that http://www.judis.nic.in presumption under Section 114 of the Evidence Act 19 being a rebuttable presumption, the complainant should make certain necessary averments to raise the presumption of service of notice; that it was not sufficient for a complainant to state that a notice was sent by registered post and that the notice was returned with the endorsement out of station and that there should be a further averment that the addressee-drawer had deliberately avoided receiving the notice or that the addressee had knowledge of the notice, for raising a presumption under Section 114 of the Evidence Act. The following question was, therefore, referred to the larger Bench for consideration.
Whether in absence of any averments in the complaint to the effect that the accused had a role to play in the matter of non-receipt of legal notice; or that the accused deliberately avoided service of notice, the same could have been entertained keeping in view the decision of this Court in Vinod Shivappas case?
7. Dealing with the above question, this Court referred to K.Bhaskaran v. Sankaran Vaidhyan Balan[4], where this Court referred to Section 27 of the General Clauses Act, 1897 (the GC Act) and observed that since the NI Act does not require that notice should only be given by post in a case where the sender has despatched the notice by post with correct address written on it, Section 27 of the GC Act could be profitably imported and in such a situation service of notice is deemed to have been effected on the sender unless he proves that it was really not served and that he was not responsible for such non- service.
8. This Court then referred to Vinod Shivappas case, http://www.judis.nic.in where the above aspects have been highlighted. This 20 Court quoted the following paragraph from Vinod Shivappa with approval....
9. This Court then explained the nature of presumptions under Section 114 of the Evidence Act and under Section 27 of the GC Act and pointed out how these two presumptions are to be employed while considering the question of service of notice under Section 138 of the NI Act.
14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement refused or not available in the house or house locked or shop closed or addressee not in station, due service has to be presumed. [Vide Jagdish Singh Vs. Natthu Singh (1992) 1 SCC 647; State of M.P. Vs. Hiralal & Ors. (1996) 7 SCC 523 and V.Raja Kumari Vs. P.Subbarama Naidu & Anr. (2004) 8 SCC 74] It is, therefore, manifest that in view of the presumption available under Section 27of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that http://www.judis.nic.in service of notice was evaded by the accused or that the 21 accused had a role to play in the return of the notice unserved.
10. It is thus clear that Section 114 of the Evidence Act enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. Section 27 of the GC Act gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. It is not necessary to aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business.
11...We must mention that in C.C. Alavi Haji, this Court did not deviate from the view taken in Vinod Shivappa, but reiterated the view expressed therein with certain clarification. We have already quoted the relevant paragraphs from Vinod Shivappa where this Court has held that service of notice is a matter of evidence and proof and it would be premature at the stage of issuance of process to move the High Court for quashing of the proceeding under Section 482 of the Cr.P.C. These observations are squarely attracted to the present case. The High Courts reliance on an order passed by a two- Judge Bench in Shakti Travel & Tours is misplaced. The order in Shakti Travel & Tours does not give any idea about the factual matrix of that case. It does not advert to rival submissions. It cannot be said therefore that it lays http://www.judis.nic.in down any law. In any case in C.C. Alavi Haji, to which we 22 have made a reference, the three- Judge Bench has conclusively decided the issue. In our opinion, the judgment of the two-Judge Bench in Shakti Travel & Tours does not hold the field any more.''
29.If the aforesaid principle, as has been settled by the Hon'ble Apex Court in the afore cited two Judgments, is applied to the facts of the present case, the very plea raised by the petitioner, which in fact is the only legal plea raised before this Court by the petitioner through his counsel, can outrightly be rejected. In fact, in the said cases cited above, the Hon'ble Apex Court has dealt with the matters with the fact that the complainant did not contend whether the notice had been served on the drawer of the cheque. Even in the absence of such averment in the complaint, the Hon'ble Apex Court has held that, the complaint is entertainable and the alleged offence is triable. Here, in the case in hand, in fact, notice has been served and the personal staff of the petitioner has received the same and acknowledged and the said copy of the notice as well as the postal acknowledgement card had also been marked as Ex.P.4 and Ex.P.5. before the trial Court. Therefore, the facts of the present case is far better than the case as referred to in the two cases cited above. Therefore, the principle laid down by the Hon'ble Apex Court, in this regard, especially, in the context of Section 27 of the General Clauses Act, would squarely applicable to the present case also and in fact, the present case is in still better footing than those two cases. When the principle enunciated in those Judgments since can be relied upon, the petitioner cannot raise the plea of non-service of http://www.judis.nic.in 23 notice and therefore, the said plea is liable to be rejected."
35. Therefore it become crystal clear that, the Hon'ble Apex Court in the aforementioned Judgment quoted in Sujatha Ramanathan's case (cited supra) has held that, when a notice is sent by registered post and it is returned with a postal endorsement refused or not available in the house or house locked or shop closed or addressee not in station, due service has to be presumed.
36. Here in the case in hand, notice has been sent by registered post to the proper address of the accused and the same was returned, as the addressee left, which means the addressee was not available for receipt of the service of notice when the postal person reached the place of the accused. This aspect was properly appreciated by the trial Court and the following findings of the trial Court can be usefully extracted herein :
"nkYk; nkw;go jghy; ciwahd th/rh/M/6 MdJ 21/12/2004k; njjpapy; LEFT vd;W jghy;fhuuhy; vGJp ciw jpUg;gg;gl;Ls;sij ghh;f;Fk; nghJ mr;rkaj;jpy; vjphp m';fpy;iy vd;W jhd; Fwpg;gpl;Ls;snj jtpu no such addressee vd Fwpg;gpl;L vGjg;gltpy;iy vd;gija[k; kpf Kf;fpakhf ftdpf;f ntz;oa[s;sJ/ nkw;go jghy;fhuupd;
Fwpg;gpypUe;J me;j tpyhrjhuu; m';fpUe;J http://www.judis.nic.in ngha;tpl;lhu; vd;W jhd; mu;j;jk; bfhs;s ntz;Lnk jtpu 24 mg;go xU egu; me;j tpyhrj;jpnyna ,Ue;jjpy;iy vd;w mu;j;jk; bfhs;s Koahj epiy ,Ug;gjhy; nkw;go mwptpg;ghdJ vjphpapd; rupahd Kftupf;nf mDg;gg;gl;Ls;sbjd;Wk;. mjdhy; nkw;go mwptpg;g[ rl;lg;go Vw;Wf; bfhs;sf;Toa xd;nw ,e;ePjpkd;wk; Kot[ bra;fpwJ/"
37. Hence based on the aforesaid Judgment cited in Sujatha Ramanathan's case, this Court is of the view that the conclusion reached by the trial Court, in its finding as referred to above that, the service of statutory notice under Section 138 (b) of the NI Act has been properly effected, can be accepted.
38. The second ground raised by the accused side was that, the role of P.W.1 as the Manager-cum-Power of Attorney Holder of the complainant firm cannot be accepted, in view of the situation where the P.W.1 had not come forward to mark the power of attorney said to have been executed by the complainant firm on 21.01.2005 and also it was urged by the accused side that the P.W.1 since had not proved that he was the Manager of the complainant firm, he could not have any knowledge about the alleged transaction between the complainant firm and M/s.Dress Modes firm and accordingly, he was not the proper person to depose about the alleged due payable by M/s.Dress Modes firm. Therefore based on the deposition of P.W.1, the trial Court ought http://www.judis.nic.in 25 not to have convicted the accused.
39. The aforesaid ground raised by the accused side can also be met easily. The copy of the power of attorney document was claimed to have been filed by the complainant along with the complaint and this has been mentioned in the very opening paragraph of the complaint, stating that the said power of attorney, dated 21.01.2005 and the xerox copy of the partnership deed of the complainant firm are also produced herewith. That apart, I have also perused the original records called for from the trial Court, where both the photocopy as well as the original of the power of attorney, dated 21.01.2005 are available, where the P.W.1 was given the power to file the criminal complaint, represent on behalf of the complainant partnership firm, engage or appoint any counsel or advocate, to prosecute the criminal complaint before the trial Court, to give evidence before the Court and to compromise the case and to withdraw the same.
40. Moreover, in his deposition, the P.W.1, power of attorney holder-cum-manager of the complainant firm has made the following deposition :
"11/9/07k; njjp rhl;rpia miHj;J gpukhzj;jpd; nghpy; http://www.judis.nic.in 26 tprhhpf;fg;gl;lhh;/ bgah; gp/fe;jgunk!;tud;. _ rf;fuh fk;ngulh;!;. mjpy; ehd;
nknd$uhf ,Uf;fpnwd;/ 21/1/2005k; njjpapl;l bghJ mjpfhu gj;jpuk; nf/nf/bghparhkp bfhLj;j Mtzk; jhf;fy;
bra;fpnwd;/ v';fs; epWtdk; g';Fjhu bghJ mjpfhu epWtdk;/ vjphp $hg; xh;f;!; bra;tjw;fhf bjhifia vjphp U:/2.35.548-= juntz;Lk;/ mjpy; xU gFjp 2 yl;rj;jpw;F fhnrhiyia bfhLj;jhh;/ mjw;Fz;lhd tut[ bryt[ fzf;Ffis jhf;fy;
bra;Js;nsd;/ 744220 vd;w fhnrhiy vz; g;ul;uy; ng';f;
fpisia nrh;e;j fhnrhiyia 11/10/2004k; njjp bfhLj;jhh;/ 25/11/2004k; njjp ,d;l!;ngrpy; nghl;nld;/ 26/11/2004k;
njjp hpl;ld; Mfptpl;lJ/ ,e;j nkw;go bjhif juntz;o vjphp epWtdj;jpw;F 11/10/2004k; njjp md;W fojk; xd;W jhf;fy;
bra;jhh;/ mij jhf;fy; bra;Js;nsd;/ 26/11/2004k; njjp jpUk;gt[k; hpl;ld; MdJ/ mjw;fhd t';fp Fwpg;g[ jhf;fy;
bra;Js;nsd;/ vjphpf;F 17/12/2004k; njjp tHf;fwp"h;
mwptpg;g[ mDg;gpndd;/ mij vjphp bgwhky; jpUg;gp MDg;gpdhh;/ 21/12/2004k; njjp jpUk;gp te;jJ/ vjphpaplkpUe;J fhnrhiy bjhifia 2 kl';fhf bgw;Wj;jUkhW ntz;o bfhs;fpnwd;/ gth; Mg; ml;lhdp rhd;wpl;l efy; jhf;fy;
bra;ag;gl;Ls;sJ/ g';Fjhuh; gj;jpuk; rhd;wpl;l efy; jhf;fy;
bra;ag;gl;Ls;sJ/ tut[ bryt[ fzf;F th/rh/M1 11/10/2004k;
njjp vjphp tp$aFkhh; jhd; 2 yl;rk; jUtjhf fojk; bfhLj;jhh;/ me;j fojk; th/rh/M2 11/10/2004k; njjp xhp$pdy; brf;
bgnlhuy; ng';f; brf; th/rh/M3 jhf;fy; bra;Js;nsd;/ 25/11/2004 fhnrhiyia v';fs; t';fpapy; ,k;kDtpw;F jhf;fy;
bra;jnghJ 26/11/2004k; njjp jpUk;gp te;Jtpl;lJ/ mjw;fhd http://www.judis.nic.in t';fp Fwpg;g[ th/rh/M4/ mjd;gpd; 17/12/2004k;27
njjpapd;W tHf;fwp"h; mwptpg;g[ mDg;gpndd;/ mjd;
efy; th/rh/M5 jpUk;gpaJ 21/12/2004k; njjp/"
41. The P.W.1 has further stated in the cross-examination, which reads thus :
"mnj nghy ehd; thjp epWtdkhd rf;uh FUg; nkyhsh;
vd;gij fhl;l Mtz';fs; VJk; jhf;fy; bra;njndh vd;why; ,y;iy/ eh';fs; bra;Js;s gth; Mg; ml;lhh;dpapy; ehd; nkyhsu;
vd;W vGjg;gltpy;iy vd;why;. ,y;iy/ mnjnghy; ehd; jhf;fy;
bra;Js;s gth; Mg; ml;lhdpapy; thjpahy; bfhLf;fg;gl;lJ/ xU rl;lg;goahd Mtzk; my;y vd;why; rhpay;y/ bry;yhj Mtzkhd mjpfhu gj;jpuj;jpd; K:ykhf ehd; jhf;fy; bra;Js;s rl;lg;go epiy epiyf;fj;jf;fjy;y vd;why; rhpay;y/ th/rh/M2y;
fhnrhiy vz;744220 bgluy; ng';f; fhnrhiy (tHf;F fhnrhiy) 2/4/2004 md;W bfhLf;fg;gl;ljhf fz;Ls;sJ vd;why; rhp/ tHf;F fhnrhiy bfhLf;Fk;nghJ ,izj;J bfhLf;fg;gl;l fojk; jhd;
th/rh/M2 vd;why; rhp/ tHf;F fhnrhiyapy; 2/4/2004 vd;w njjpia moj;Jtp;l;L 11/10/2004 vd;W vGjpf;bfhLj;jhh;/ mij 21/11/2000y; jhf;fy; bra;njhk;/ 2/4/2004 vd;w njjpia moj;Jtpl;L 11/10/2004 vd;W jw;nghJ brhy;Yk; tptuj;ij ehd; fhnrhiy Kjy; tprhuizapnyh tHf;fwp"h;
mwptpg;gpnyh brhy;ypapUf;fpnwdh vd;why; rhp jhd;/ jdpahf !;nll;bkz;lhf ,au; vd;o'; ngyd;!; fd;gu;nkrd;go ,izj;J bfhLj;Js;nsd;/ jpUj;jpf; bfhLj;jjhf brhy;yg;gLk; njjp 11/10/2004f;F ,e;j jpUj;jg;gl;l th/rh/M2y; ,y;iy vd;why;
rhp fhnrhiyapy; 2/4/2004 vd;w njjpa[k; 11/10/2004 http://www.judis.nic.in vd;W vGjg;gl;l njjpapy; ik tpj;jpahrg;gLfpwJ vd;why;28
,y;iy/ vjphp v';fSf;F 2/4/2004y; njjpapnyna me;j epiyapy; ,Ue;J fhnrhiyia bfhLj;jhh; vd;why; mij moj;J jpUj;jp mg;nghnj 11/10/2004 njjpapl;L bfhLj;jhh;/ vjphp ehd; TWtJ nghy fhnrhiyia 11/10/2004 vd;W njjp jpUj;jk; bra;J bfhLf;ftpy;iy vd;why; rhpay;y/ mnjnghy;
njjp jpUj;jj;jpw;F fPnH fhnrhiyapy; cs;s ifbaGj;J vjphpapDilaJ my;y vd;why; mtUilaJ jhd;/"
42. The entire deposition as has been extracted herein above would disclose the fact that, P.W.1 in every stage of the transaction, had claimed that, he had the knowledge about the same and therefore he had acted upon on behalf of the complainant firm. These factors would clearly disclose that certainly the P.W.1 had been in the helm of affair of the complainant firm during the relevant point of time. Therefore merely because the word Manager was missing in the power of attorney, it cannot be stated that the P.W.1 was not the power of attorney holder of the complainant firm. Like that, when a power of attorney holder has knowledge about the transaction, certainly he can depose before the trial Court. In this regard, the law laid down by the Hon'ble Apex Court in A.C.Narayanan's case can very well be pressed into service herein.
43. In A.C.Narayanan v. State of Maharashtra, reported in (2014) 11 SCC 790, the Hon'ble Apex Court has held as follows :
http://www.judis.nic.in 29 "30. In the light of the discussion, we are of the view that the power of attorney holder may be allowed to file, appear and depose for the purpose of issue of process for the offence punishable under Section 138 of the N.I. Act. An exception to the above is when the power of attorney holder of the complainant does not have a personal knowledge about the transactions then he cannot be examined. However, where the attorney holder of the complainant is in charge of the business of the complainant-payee and the attorney holder alone is personally aware of the transactions, there is no reason why the attorney holder cannot depose as a witness.
Nevertheless, an explicit assertion as to the knowledge of the Power of Attorney holder about the transaction in question must be specified in the complaint. On this count, the fourth question becomes infructuous.
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.
32. Similar substantial questions were raised in the appeal arising out of S.L.P (Crl.) No. 2724 of 2008, which stand answered as above. Apart from the above questions, one http://www.judis.nic.in 30 distinct query was raised as to whether a person authorized by a Company or Statute or Institution can delegate powers to their subordinate/others for filing a criminal complaint? The issue raised is in reference to validity of sub-delegation of functions of the power of attorney. We have already clarified to the extent that the attorney holder can sign and file a complaint on behalf of the complainant-payee. However, whether the power of attorney holder will have the power to further delegate the functions to another person will completely depend on the terms of the general power of attorney. As a result, the authority to sub- delegate the functions must be explicitly mentioned in the general power of attorney. Otherwise, the sub-delegation will be inconsistent with the general power of attorney and thereby will be invalid in law. Nevertheless, the general power of attorney itself can be cancelled and be given to another person.
33. While holding that there is no serious conflict between the decisions in MMTC (supra) and Janki Vashdeo Bhojwani (supra), we clarify the position and answer the questions in the following manner:
33.1. Filing of complaint petition under Section 138 of N.I Act through power of attorney is perfectly legal and competent.
33.2. The Power of Attorney holder can depose and verify on oath before the Court in order to prove the contents of the complaint. However, the power of attorney holder must have witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the said transactions.
http://www.judis.nic.in 31 33.3. It is required by the complainant to make specific assertion as to the knowledge of the power of attorney holder in the said transaction explicitly in the complaint and the power of attorney holder who has no knowledge regarding the transactions cannot be examined as a witness in the case."
44. Apart from the aforesaid, it is pertinent to be noted in this case, even though the accused was not one of the partner in the firm called M/s. Dress Modes, he had voluntarily come forward to settle the dues payable by the said M/s. Dress Modes firm towards the complainant. These factor can be evidenced that, on the date of issuance of cheque, i.e., on 11.10.2004, the accused also had issued a letter, which has already been referred to above. If at all, the accused had no connection whatsoever with M/s. Dress Mode firm, there had been no occasion and no necessity for the accused to come forward to issue the cheque and also to issue a letter to that effect on the same date. Further the accused even though had a chance to depose before the trial Court, by examining himself as a defence witness, he had not chosen to do so. Therefore if not explicitly, at least impliedly he has accepted the execution of the cheque in question and also the issuance of the letter dated 11.10.2004, which were marked as Ex.P.3 and Ex.P.2 respectively.
http://www.judis.nic.in 45. It is further to be noted that, the bank statement of the 32 accused was filed and marked as Ex.D.2. It is a statement of accounts between the period 01.01.2000 and 16.05.2005. On perusal of Ex.D.2, it discloses that, as on 05.10.2003, the account was having the balance of Rs.2,70,456/-. However on that date, a sum of Rs.2,69,000/- was withdrawn by the accused. Thereafter absolutely there had been no deposit or withdrawal in the said account, except periodical interest for a sum of Rs.25/- on three occasions and Rs.4/- on one occasion. The account also discloses the fact that, between 16.02.2004 and 16.05.2005, the only balance available in the account of the accused was not more than Rs.1456/- and with the said amount, the account itself was closed on 16.05.2005.
46. Therefore. Ex.D.2 clearly establishes the fact that, the accused, at the time of issuance of the cheque originally on 02.04.2004 in the name of one K.K.Periyasamy, one of the partner of the complainant firm and also on the date of re-issuance of the cheque in the name of the complainant firm, dated 11.10.2004, did not have any money to honour the cheque of Rs.2 lakhs, as the account, Ex.D.2, discloses that the accused's account was having a sum of Rs.1,456/- alone for all these period.
47. In spite of these factor, the accused had come forward to issue the cheque on 11.10.2004 and also issued a letter on 11.10.2004 in support of the issuance of the said cheque in his http://www.judis.nic.in 33 personal name in order to settle the dues payable by M/s. Dress Modes firm.
48. These factors would go to show that, the accused having known to the fact that he did not have any money in the account, issued the cheque and also issued the letter in support of the issuance of the cheque.
49. It is a settled legal proposition that, the initial legal presumption in favour of the complainant as contemplated under Section 139 and 118(a) of the NI Act is a rebuttable presumption.
50. In this context, I would like to quote certain decisions of the Hon'ble Supreme Court, which I have followed in my order in K.Senthilmurugan v. P.Satishkumar, reported in 2018(2) MWN (Cr.) DCC 56 (Mad). Though in the said case, I have set aside the Judgment of the trial Court as well as the first appellate Court and set the accused at liberty, the principle I have followed in that case following the decisions of the Hon'ble Apex Court in the context of statutory presumption in Negotiable Instrument matters under Section 138 of the NI Act, can very well be pressed into service in this case also. In the said decision, N.Lakshmi v. P.Damodarasamy, reported in 2018 (1) LW (Crl) 584 was followed by me and the relevant portion of the said Judgment is extracted hereunder :
http://www.judis.nic.in 34 "44. Even though, the learned counsel for the complainant/respondent would very well rely upon the judgement of the Honourable Apex Court in Rangappa's case reported in 2010(11) SCC 441 [Rangappa vs. Sri Mohan] this court respectfully state that there can be no quarrel in the principle enunciated by their lordships in the said judgement in Rangappa's case. It cannot be forgotten that the decree of proof of statutory presumption as well as the rebuttal under Section 139 and 118 of the Negotiable Instruments Act are only to the decree of preponderance of probability. In this regard, I had an occasion to consider this aspect on the basis of the principle laid down by the Honourable Apex Court in Rangappa's case in the judgement reported in 2018 (1) L.W.Crl.584 in the matter of N.Lakshmi vs. P.Damodarasamy. The relevant paragraphs are usefully extracted here under:
26.In a number of cases, the Law under Section 138 of the Negotiable Instruments Act, has been developed and strengthened by Law Courts at various point of time. If the initial presumption under Sections 139 and 118 of the Negotiable Instruments Act give a favourable tilt towards the complainant, such a statutory presumption is always a rebuttable presumption only.
27.In this regard, if decree of proof, to come to a presumption in favour of the complainant, is the preponderance of probability. Equally the decree of proof for rebutting on the side of the accused, again would be the preponderance of probability.
28.In this regard, the classic Judgment of the Hon'ble Apex Court in Rangappa v. Sri Mohan reported in 2010 11 SCC 441 can very well be pressed into service. In the said http://www.judis.nic.in 35 Judgment cited supra, their Lordships at Paragraphs 26 to 28 has held as follows:
26. In light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat [(2008) 4 SCC 54 : (2008) 2 SCC (Cri) 166] may not be correct.
However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant.
27. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and http://www.judis.nic.in 36 the defendant-accused cannot be expected to discharge an unduly high standard or proof.
28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of preponderance of probabilities. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own."
45. In the said case cited above, I have also considered and followed the principles laid down by the Honourable Apex Court in M/s.Narayana Menon @ Mani vs. State of Kerala reported in 2006(6) SCC 39 and has made the following observation:
33.Since the proceedings under Section 138 of the Negotiable Instruments Act, is punitive in nature and once the Court has come to the conclusion that the accused is guilty, such conclusion has to be supported by clear evidence. In this regard, the Law laid down by the Hon'ble Apex Court in M.S. Narayana Menon @ Mani v. State of Kerala and another reported in 2006 6 SCC 39, can be taken as a precedent. The Hon'ble Apex Court in the said Judgment cited supra has stated that the presumption under Sections 118 and 139 shall be with the standard of proof of http://www.judis.nic.in 37 preponderance of probability only. The relevant portions of the said Judgment are extracted hereunder:
27. In view of the aforementioned backdrop of events, the questions of law which had been raised before us will have to be considered. Before we advert to the said questions, we may notice the provisions of Sections 118(a) and 139 of the Act which read as under:
118. Presumptions as to negotiable instruments.Until the contrary is proved, the following presumptions shall be made
(a) of consideration.that every negotiable instrument was made or drawn for consideration, and that every such instrument when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;
139. Presumption in favour of holder.It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability. Presumptions both under Sections 118(a) and 139of the Act are rebuttable in nature.
.....
30.Applying the said definitions of proved or disproved to the principle behind Section 118(a) of the Act, the court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such http://www.judis.nic.in 38 presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon.
31. A Division Bench of this Court in Bharat Barrel & Drum Mfg. Co. v. Amin Chand Payrelal [(1999) 3 SCC 35] albeit in a civil case laid down the law in the following terms:
(SCC pp. 50-51, para 12) 12. Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the http://www.judis.nic.in 39 existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. This Court, therefore, clearly opined that it is not necessary for the defendant to disprove the existence of consideration by way of direct evidence.
32. The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which he relies.
34. If the above said principles of the Apex Court in both Judgments cited above, are applied to the present case, the statutory presumption found in favour of the complainant merely on the basis of the issuance of cheques and acceptance of signature by the accused, has been acceptably rebutted with a decree of proof of preponderance of probability, by the accused."
51. Here in the case in hand, if the said principles referred to above are applied herein, the following position would emerge :
(1) That the notice issued under Section 138(b) of the NI Act was issued to the correct address of the accused and though it was returned as addressee left, it can safely be presumed that the notice was issued to the correct address of the accused and therefore it is served.
(2) In respect of the role of power of attorney holder in Section 138 of the NI Act matters, the principle has http://www.judis.nic.in 40 been made clear by the Hon'ble Apex Court in A.C.Narayanan's case referred to above. If the same principle is applied in the facts of the present case, the complaint filed by the complainant through the Manager-cum-Power of Attorney Holder of the complainant firm can very well be maintained and the evidence he deposed before the trial Court can very well be taken on record.
(3) Even though the accused claimed that, he was not one of the partner of M/s. Dress Modes, from whom a sum of Rs.2,35,548/- was due to the complainant firm, in view of the issuance of the cheque in question, where the signature of the accused was not denied and also in view of the letter, dated 11.10.2004 issued by the accused in the letter head of M/s.Dress Modes firm and these executions were not explicitly denied by the accused and in fact, he had not chosen to be examined as one of the defence side witness, the initial presumption established in favour of the complainant has not been rebutted by the accused and therefore the said initial presumption was not shattered in this case by the accused side.
(4) In view of the aforesaid legal and factual position http://www.judis.nic.in 41 and in view of the execution of the cheque in question, since has been established, the statutory presumption by a decree of proof of preponderance of probability can be safely drawn in favour of the complainant. When it has established a case that the accused in order to pay the legally enforceable debt, had issued the cheque, which was dishonoured for want of funds, definitely he had committed an offence punishable under Section 138 of the Negotiable Instruments Act.
52. The aforesaid conclusion was inevitable, because, the accused has never deposed before the trial Court denying the execution of the cheque and also the issuance of the letter, dated 11.10.2004, i.e., Ex.P.2.
53. In view of the aforesaid, the Judgment, which is impugned herein, made by the first appellate court cannot be accepted, as the learned first appellate court Judge has not considered the issue discussed above in proper perspective. Therefore this Court has no hesitation to hold that the impugned Judgment of the first appellate Court is liable to be interfered with.
54. In the result, the Judgment impugned made by the first http://www.judis.nic.in 42 appellate Court in C.A.No.72 of 2014, dated 09.02.2015 on the file of the I Additional District and Sessions Judge, Tirupur is hereby set aside and the Judgment and conviction made by the trial Court in S.T.C.No.609 of 2005, dated 08.10.2014 on the file of the Judicial Magistrate No.II, Tirupur is hereby restored.
55. As a sequel, the conviction inflicted on the accused by the trial Court is hereby confirmed. Consequently the trial Court is directed to take steps to execute the Judgment and sentence made by the trial Court, by its Judgment, dated 08.10.2014 in S.T.C.No.609 of 2005.
Accordingly, this Criminal Appeal is allowed as indicated above.
14.11.2018
Index : Yes
Speaking Order
tsvn
To
1. The I Additional District & Sessions Judge, Tirupur.
2. The Judicial Magistrate No.II, Tirupur.
3. The Public Prosecutor High Court of Madras, Chennai.
http://www.judis.nic.in 43 R.SURESH KUMAR, J.
tsvn Judgment in Crl.A.No.216 of 2015 14-11-2018 http://www.judis.nic.in