Bangalore District Court
Smt. Shobha Rani M vs Narayanappa A.S on 20 February, 2020
IN THE COURT OF XXI ADDL.CHIEF METROPOLITON
MAGISTRATE, BENGALURU CITY
Present: Sri. V. NAGARAJA, LL.B., LL.M.,
XXI Addl. Chief Metropolitan Magistrate,
Bengaluru.
Dated this the 20th day of February, 2020
C.C. No.18584/2019
COMPLAINANT: Smt. SHOBHA RANI M
W/o. Ravi,
Aged about 38 years,
R/at. No.11, 7th Cross,
Behind Neethi Bakery,
Andrahalli Main Road,
Vidyamanya Nagara,
Bengaluru - 560 091.
(Reptd. By: VRC., Advocate)
V/s.
ACCUSED: NARAYANAPPA A.S.
S/o. Shamanna @ Shamappa,
Working as Senior Driver
Cum Messenger,
State Bank of India,
Rajajinagara 2nd Block Branch,
Bengaluru - 560 010.
(Reptd. By: SKP., Advocate)
:JUDGMENT:
Complainant has filed this complaint under Section 200 of Cr.P.C. r/w Section 138 of N.I. Act, seeking for penalizing the accused for the offence punishable under 2 C.C.No.18584/2019 Section 138 of N.I. Act and also for awarding compensation to her.
2. Case of the complainant in a nutshell is that:
Accused is her close relative that is to say her maternal uncle. So, in that relationship, in the last week of September 2018, accused had approached her for financial assistance of Rs.2,00,000/- to meet his financial commitments. So, on considering his request, in the month of October, she advanced Rs.2,00,000/- and after receiving the above said amount, the accused has assured her to repay the same within three months. So, after expiry of three months, in the month of January 2019, the complainant demanded the accused to return of above said amount, but accused has postponing the payment of above said amount on one or other pretext. So, ultimately, in order to discharge above said liability, the accused has issued her a cheque bearing No.119552 dated 18.05.2019 for Rs.2,00,000/- drawn on State Bank of Mysore, Bengaluru Branch, Bengaluru and assured to honour the said cheque. So, believing the words of the accused, on 07.06.2019, she presented the above said cheque through her banker i.e., State Bank of India, K.G. Road Branch, 3 C.C.No.18584/2019 Bengaluru. But said cheque was dishonoured for the reason "Funds Insufficient" in the account of accused. So, the bank authorities issued endorsement dated 08.06.2019. So, she got issued legal notice to accused dated 18.06.2019 through RPAD to accused regarding dishonour of cheque and called upon him to pay cheque amount, but accused intentionally evaded to receive the said notice and same has been returned on 29.06.2019 with postal endorsement as "Not Claimed". So, it is construed as deemed service and accused has failed to pay the cheque amount. Hence, accused has committed offence punishable U/s.138 of NI Act. Hence, she is constrained to file this complaint seeking for penalizing the accused for the offence punishable under Section 138 of N.I. Act., and also seeking for awarding of compensation to her.
3. In pursuance of summons issued by this court, accused made appearance through his counsel and obtained bail and now he is on bail.
4. As these proceedings are summary in nature, substance of accusation read over and explained to 4 C.C.No.18584/2019 accused in language known to him whereas, he pleaded not guilty and claimed for trial.
5. In order to prove the case of the complainant, he has been examined as PW-1 and got documents marked Ex.P-1 to Ex.P-5. After completion of evidence of complainant, statement of accused as specified U/s.313 of Cr.P.C., has been recorded and he has been examined as DW-1 and got documents marked Ex.D-1 to Ex.D-5.
6. I have heard arguments of both learned counsels, whereas learned counsel for accused also filed his written arguments.
7. Perused the records.
8. After perusal of records, the points arise for my consideration are:
1) Whether complainant proves beyond all reasonable doubt that accused in order to discharge his legally enforceable debt, he has issued her a cheque No.119552 dated 18.05.2019 for Rs.2,00,000/- drawn on State Bank of Mysore, Bengaluru Branch, Bengaluru?
2) Whether complainant further proves that she has complied with mandatory requirements as specified under Section 138 of N.I. Act?
3) What Order?
5 C.C.No.18584/2019
9. My findings on the above points are:
Point No.1 : In the Affirmative
Point No.2 : In the Affirmative
Point No.3 : As per final order,
for the following:
REASONS
10. Point No.1: As I have already stated, in order to prove the case of the complainant, she has been examined as PW-1 and she filed her examination-in-chief by way of affidavit by reiterating entire complaint averments as stated above. In support of her oral testimony, she relied upon Ex.P-1 to Ex.P-5.
11. On the other hand, accused has been examined as DW-1 and got documents marked Ex.D-1 to Ex.D-5.
12. Before appreciation of evidence of both parties, I am of the opinion, it is worth to note presumptions envisaged in N.I. Act as well as ratio laid down by the Hon'ble Apex Court in Three Judges Bench Judgment reported in (2010) 11 SCC 441 (Rangappa V/s. Sri Mohan) wherein it is held:
"The presumption mandated by Section 139 includes a presumption that there exists a legally enforceable debt or liability. This is of course in the nature of a rebuttable 6 C.C.No.18584/2019 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, herein, there can be no doubt that there is an initial presumption which favours the respondent /complainant."
It is further held:
Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the court in favour of the complainant. The presumption referred to Section 139 of the NI Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption.
13. So in the light of above presumptions and ratio decidendi laid down by Hon'ble Apex Court, if the present facts and situations are analyzed, it is obvious that according to complainant, accused has issued cheque for discharging of his liability. On the other hand, on considering the stand taken by the accused, it is obvious that though he disputes his liability as claimed by complainant, but he is not disputing the facts that cheque is belonged to his account and it bears his signature. So, as I have already stated in view of ratio laid down by Hon'ble Apex court in the Judgments stated supra, that as soon as accused admits the facts that cheque is belonged to his 7 C.C.No.18584/2019 account and it bears his signature, then the mandatory presumption u/S 139 of N.I. Act comes to the aid of complainant and he can rest upon said presumption.
14. Whereas, learned counsel for defence argued that in order to raise presumption U/s.138 of NI Act, the condition precedent is that complainant must prove the existence of legally recoverable debt or liability, if he is able to prove the same, then only presumption can be raised otherwise not.
15. Having regard to the arguments of learned counsel for accused, it is important to note as I have already pointed out Hon'ble Three-Judges Bench Judgment of Hon'ble Supreme Court in Rangappa's case stated supra, it is clearly held:
"The presumption mandated by Section 139 includes a presumption that there exists a legally recoverable debt or liability"
16. So when above ratio clearly states that presumption includes existence of legally enforceable debt or liability then further proof of that fact is not required that too in summary proceedings. Because Hon'ble Apex 8 C.C.No.18584/2019 Court in the judgment reported in (2009)2 SCC 513 (Kumar Exports V/s. Sharma Carpets) has clearly observed that:
Presumption literally means "taking as true without examination or proof"
17. At this juncture, it is also worth to note ratio laid down by Hon'ble Apex Court in the judgment reported in (2014)5 SCC 590 (Indian Bank Association and others V/s. Union of India and others) wherein it is held by reiterating Section 143 of Negotiable Instruments Act and Section 264 of Cr.P.C., that:
"Section 264, Judgments in cases tried summarily - In every case tried summarily in which the accused does not plead guilty, the Magistrate shall record the substance of the evidence and a judgment containing a brief statement of the reasons for the finding"
"Thus, the Magistrate is not expected to record full evidence which he would have been, otherwise required to record in a regular trial and his judgment should also contain a brief statement of the reasons for the finding and not elaborate reasons which otherwise he would have been required to record in regular trials"9 C.C.No.18584/2019
18. So, in the light of above ratio decidendi and in view of Section 143 of Negotiable Instruments Act and Section 264 of Cr.P.C., as this case is summary case, I am of the opinion it is not necessary to discuss elaborately with respect to legally enforceable debt when presumption includes existence of legally recoverable debt as held in the above said judgment of Hon'ble Apex Court. So, the mandatory presumptions will live, exist and survive and shall end only when the contrary is proved by the accused, that is to say the cheque was not issued for consideration and in discharge of any debt or liability, in other words, onus shifts on the accused to rebut the said mandatory presumption raised in favour of complainant as observed by Hon'ble Apex Court in the Judgment reported in (2009)2 SCC 513 (Kumar Exports V/s. Sharma Carpets).
Now the crucial question arises as to whether accused is able to rebut the said presumption or not?
19. It is significant to note on considering the defence of the accused, he contended that he had borrowed Rs.2,00,000/- from the complainant about four years bank. At that time, complainant had obtained his signed blank cheque for security purpose. Later, he 10 C.C.No.18584/2019 started to repay the loan amount in installments by way of cash and last two installments i.e., pertaining to January and February 2019, he transferred the amount from his account to complainant's account, thereby he repaid entire loan amount and requested the complainant to return his cheque, but the complainant without returning the same, in order to grab more money from him, she misused his signed blank cheque. In fact, he had issued above said cheque i.e., pertaining to State Bank of Mysore about four years back. However, the said State Bank of Mysore merged with State Bank of India in the year 2017. Ever since, he has been using cheque leaves pertaining to State Bank of India and he never issued any cheques pertaining to State Bank of Mysore. He further contended that he not at all borrowed Rs.2,00,000/- in the month of October 2018 as claimed by complainant and he has not issued cheque on 18.05.2019, because he had no cheque leaves pertaining to State Bank of Mysore on that day. Moreover, he had under the treatment from 13.05.2019 to 08.08.2019 due to injury sustained by him due to fall from tree. So, question of issuing present cheque on 18.05.2019 as claimed by the complainant, does not arise, whereas the complainant has misused his four years old 11 C.C.No.18584/2019 cheque. Hence, present complaint is liable to be dismissed and he may be acquitted.
20. In support of above defence, learned counsel for accused in his oral as well as written arguments, he argued that there was no legally enforceable debt between complainant and accused, because accused had already repaid the entire loan amount. He further argued that though initial presumption can be raised in favour of complainant as accused is not disputing his signature on the cheque, but it is rebuttable presumption, whereas standard of proof required by the accused to rebut the presumption is only "preponderance of probabilities". Herein this case, the accused has raised probable and acceptable defence by proving the fact that as on the date of alleged issuance of cheque i.e., on 18.05.2019, he was under treatment from 13.05.2019 to 08.08.2019 as he had sustained waist twisting due to fall from the tree and he was unable to come out from the house and he was on leave without attending to his bank work. So, under such circumstances, contention of the complainant that accused has issued present cheque on 18.05.2019 at the outside of the bank does not arise. So, accused has able 12 C.C.No.18584/2019 to rebut the presumption. Hence, accused is entitled for acquittal. He further argued that the complainant in order to grab money from accused, she has misused his four years old security cheque given to her at the time of availing Rs.2,00,000/- from her. He further argued that mandatory notice not at all served on accused. On these grounds, complaint is liable to be dismissed and accused may be acquitted.
21. Per contra, learned counsel for complainant argued that version of the accused cannot be believable and acceptable, because if really he had given present cheque for security purpose about four years back, then definitely he would have taken legal action to get back the said cheque. Even he did not give reply to legal notice issued by the complainant. So, these facts clearly show that accused has given present cheque for discharging of his liability, whereas accused only in order to escape from his liability, he has set up false story of repayment and alleged misuse of cheque. Hence, his version cannot be believable and accused has failed to rebut the mandatory presumption. Hence, he has to be convicted and maximum sentence may be imposed.
13 C.C.No.18584/2019
22. Having regard to the arguments of both learned counsels, it is worth to note ratio decidendi laid down Hon'ble Apex Court in very Rangappa V/s. Sri. Mohan's case, it is clearly observed that:
"A mere plausible explanation is not expected from the accused and it must be more than a plausible explanation by way of rebuttal evidence. In other words, the defence raised by way of rebuttal evidence must be probable and capable of being accepted by the court"
23. At this juncture, it is worth to note ratio decidendi laid down by the Constitution Bench of Hon'ble Apex Court in the judgment reported in AIR 1964 SC 575 (Dhanvantrai Balwantrai Desai V/s. State of Maharashtra) which has been followed in the subsequent judgment reported in (2001)6 SCC 16 (Hiten P.Dalal V/s. Brathindranath Banerjee) wherein it is held that:
"That the distinction between the two kinds of presumption lay not only in the mandate to the court, but also in the nature of evidence required to rebut the two. In the case of a discretionary presumption the presumption if drawn may be rebutted by an explanation which "might reasonably be true and which is 14 C.C.No.18584/2019 consistent with the innocence" of the accused. On the other hand in the case of a mandatory presumption "The burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation is offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible"
24. At this juncture, it also worth to note in another judgment of Hon'ble Apex Court reported in (2010)8 SCC 383 (Meghmala and others V/s. Narasimha Reddy and others) wherein it is held that:
"It is not like any other criminal case where the accused is presumed to be innocent unless the guilt is proved. The presumption of innocence is a human right, however, subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence. For this purpose, the nature of offence, its seriousness and gravity thereof has to be taken into consideration. Statutes like the 15 C.C.No.18584/2019 Negotiable Instruments Act, 1881; the Prevention of Corruption Act, 1998; and the Terrorist and Disruptive Activities (Prevention) Act, 1987, provide for presumption of guilt if the circumstances provided in those statutes are found to be fulfilled and shift the burden of proof of innocence on the accused. Thus, the legislature has adopted a deviating course from ordinary criminal law shifting the burden on the accused to prove that he was not guilt"
25. So from the above ratio, it is crystal clear that proceedings U/s.138 of NI Act is not like any other criminal case where the accused is presumed to be innocent unless the guilt is proved. On the other hand the legislature has adopted a deviating course from ordinary criminal law by shifting the burden on the accused to prove that he is not guilty. So, the accused must rebut the mandatory presumption by raising probable and acceptable defence to the satisfaction of the court, because the presumption raised in favour of complainant is mandatory presumption, but not general presumption.
26. In the light of above ratio decedendi, if the present facts and situations are analyzed, it is important to note, as I have already pointed out, the accused 16 C.C.No.18584/2019 contended that he had borrowed Rs.2,00,000/- from the complainant about four years back and repaid entire amount by way of installments that is to say most of the installments by way of cash and last two installments i.e., January and February 2019 installments were paid through transferring of money from his account to SB account of the complainant. In order to prove above fact, he mainly relied upon his bank account statement Ex.D-5 and contended that on 25.01.2019 Rs.10,000/- has been transferred to the account of complainant and on 26.02.1019 Rs.10,000/- has been transferred to the account of complainant. It is important to note, on perusal of Ex.P-5, though in the account statement, on 25.01.2019 and on 26.02.2019 Rs.10,000/- each has been transferred to the different account numbers mentioned therein, but there is no specific entry that said amount has been transferred to the account of complainant. Moreover, the accused has not produced that account numbers shown in Ex.P-5 is pertaining to the complainant. Even it is presumed for the sake of arguments that said account numbers are pertaining to complainant and accused transferred Rs.10,000/- each on two dates, then he only repaid Rs.20,000/-. It is further 17 C.C.No.18584/2019 significant to note, though the accused contended that he has paid remaining amount in installments by way of cash, but he has not placed any cogent and convincing evidence. So, under such circumstances, his contention that he had borrowed Rs.2,00,000/- from the complainant about four years back and he repaid the entire amount cannot be believable and acceptable. So, Ex.D-2 will not helpful to the contention of the accused.
27. Coming to another defence of the accused that as on the date of alleged issuance of cheque i.e., on 18.05.2019, he was under treatment from 13.05.2019 to 08.08.2019 as he had sustained injury i.e., waist twisting due to fall from the tree. So, he was on leave without attending to his bank work. So, under such circumstances, contention of the complainant that accused has issued present cheque on 18.05.2019 at the outside of the bank does not arise etc.
28. Having regard to the defence of the accused, it is important to note, on perusal of Ex.D-1 which is medical certificate reveals that accused was under treatment since 12.06.2019 to 08.08.2019 for strain/sprain of left knee with asthma. But it is important to note, cheque is said to 18 C.C.No.18584/2019 have been issued on 18.05.2019 i.e., almost 24 days prior to taking treatment on 12.06.2019. So, under such circumstances, his contention that he was under
treatment on alleged date of issuance of cheque, cannot be believable and acceptable. It is further significant to note, on perusal of Ex.D-2 which is leave sheet issued by State Bank of India, where accused is working, also reveals that accused was on sick leave from 12.06.2019 to 08.08.2019.
So, under such circumstances, his contention that he was under treatment on alleged date of issuance of cheque, cannot be believable and acceptable.
29. At this juncture, it is significant to note, learned counsel for accused argued by relying upon Ex.D-2 and submitted in Ex.D-2 it is clearly shown that accused was on leave from 13.05.2019 to 11.06.2019 and not attending the bank work. So, question of issuance of present cheque on 18.05.2019 at the outside of the bank does not arise etc.
30. Having regard to the arguments of learned counsel for accused, it is important to note, on perusal of Ex.D-2, it is clearly mentioned that accused was on privileged leave from 13.05.2019 to 11.06.2019, but he 19 C.C.No.18584/2019 was not on sick leave, whereas sick leave started on 12.06.2019, whereas his medical certificate Ex.D-1 also states that he was under treating from 12.06.2019.
Moreover, the accused has not placed any material to show that he was unable to come out from the house. So, under such circumstances, merely on the fact that he was on privileged leave on 18.05.2019, it cannot be deemed that he was not came near bank. So, under such circumstances, arguments of learned counsel for accused that accused not issued the present cheque on 18.05.2019 cannot be believable and acceptable.
31. Coming to one more arguments of learned counsel for accused that present cheque is old cheque leaf of the accused pertaining to State Bank of Mysore, whereas in the year 2017, State Bank of Mysore merged with State Bank of India. Ever since, accused has been using cheque leaves pertaining to State Bank of India in the same account number as shown in Ex.D-4 which is his cancelled cheque leaf. So, under such circumstances, question of issuance of present cheque leaf pertaining to State Bank of Mysore on 18.05.2019 does not arise. On the other hand, it clearly establishes that said cheque leaf 20 C.C.No.18584/2019 was issued prior to 2017 which proves that said cheque was issued about four years back for security purpose etc.
32. Having regard to the arguments of learned counsel for accused that it is important to note, accused has not produced any document or examined his banker to show that he has surrendered all his old cheque leaves pertaining to State Bank of Mysore at the time of obtaining his new cheque book from State Bank of India, in which earlier State Bank of Mysore was merged. So, under such circumstances, mere merger of the bank will not leads to draw inference that old bank cheque leaves cannot be issued after merger of the bank. Even that fact itself is not sufficient to rebut the mandatory presumption. Hence, I do not find any force in the arguments of learned counsel for accused.
33. At this juncture, it is also worth to take note of the conduct of the accused as specified U/s.114 of Indian Evidence Act that as per his contention, complainant has misused his signed blank cheque which was given for security purpose. If that is the case, a reasonable doubt arises in the mind of the court as to why accused has kept quite for along time without taking any legal action against 21 C.C.No.18584/2019 complainant to get back his cheque and also alleged misuse of present cheque by the complainant. So, I am of the opinion, if at all accused had not issued present cheque to complainant for discharging of his legally enforceable debt, then definitely accused would have initiated legal proceedings against the complainant with respect to alleged misuse of his cheque, because no prudent man will keep quite, when his cheque is misused by somebody else. So, non-taking any of these actions by the accused at appropriate time, it creates a reasonable doubt in the mind of the court regarding acceptance of his version that complainant misused the cheque. So, I come to clear conclusion that the defence raised by the accused is not probable and acceptable.
34. Coming to one more argument of learned counsel for accused that complainant has filled up the contents of the cheque for her convenience which amounts to material alteration etc.
35. Having regard to the arguments of learned counsel for accused at this juncture, it is worth to note ratio laid down by Hon'ble Apex Court in the recent judgment reported in 2019 SCC On line SC 138 = Crl. 22 C.C.No.18584/2019 Appeal No.230-231/2019 2019 (@SLP(Crl) No.9334- 35/2018) dated 06.02.2019 (Bir Singh V/s. Mukesh Kumar) wherein it is held that:
"A meaningful reading of the provisions of the Negotiable Instruments Act, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had not been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted"
"If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence"
"It may reasonably be presumed that the cheque was filled in by the appellant- complainant being the payee in the presence of the respondent-accused being the drawer, at his request and/or with his acquiescence.23 C.C.No.18584/2019
The subsequent filling in of an unfilled signed cheque is not an alteration"
36. Having regard to the arguments of learned counsel for accused at this juncture, it is worth to note ratio laid down by Hon'ble Apex Court in the judgment reported in (2002)7 SCC 150 (P.K. Manmadhan Kartha V/s. Sanjeev Raj and another) wherein it is held that:
"Difference of handwriting and ink on the cheque did not rebut the statutory presumption U/s.139 and 118 of NI Act"
37. At this juncture it is also worth to note that view taken by Hon'ble High Court of Karnataka reported in ILR 2001 KAR 4127 (S.R. Muralidhar V/s. Ashok G.Y.) wherein it is held that:
Section 20 of NI Act - Inchoate stamped instruments "No law provides that in case of any negotiable instrument entire body has to be written by maker or drawer only. What is material is signature of drawer or maker and not the body writing hence question of body writing has no significance"
"It is not objectionable or illegal in law to receive a inchoate negotiate instrument duly singed by the maker despite the material 24 C.C.No.18584/2019 particulars are kept blank if done with an understanding and giving full authority to the payee to fill up the material contents as agreed upon. Such a course of action in law cannot vitiate the transaction nor can invalidate the negotiable instrument issued and such transaction fully binds the maker of the Negotiable Instrument"
38. So, in the light of above principle if the present facts and situations are analyzed, as I have already pointed out accused is not disputing issuance of cheque and his signature thereon. Under such circumstances, filling up body of the cheque by complainant or somebody else will not invalidate the cheque and that itself will not rebut the mandatory presumption raised in favour of complainant when version of the accused itself is not probable and acceptable. Hence, I don't find any force in the arguments of learned counsel for accused.
39. As I have already pointed that Hon'ble Apex Court in the Constitution Bench and Larger Bench Judgments stated supra, it is clearly held that presumption envisaged U/s.138 of NI Act is not general presumption but it is mandatory presumption, so the said presumption has to be rebutted by 'proof' and not by a 25 C.C.No.18584/2019 bare explanation which is merely plausible". So, I come to clear conclusion that accused has utterly failed to rebut the mandatory presumption raised in favour of complainant. Hence, I hold this point in Affirmative.
40. Point No.2: As I have already discussed in point No.1 that accused has issued cheque for discharging of his legally recoverable debt. Whereas, on perusal of bank endorsement given by bank authority clearly reveal that complainant had presented the said cheque within validity period, but said cheque was dishonoured with endorsement "Funds Insufficient". On perusal of Ex.P-3 which is legal notice issued to accused clearly reveal that the complainant got issued said demand notice to accused within specified time of 30 days from the date of receiving of endorsement from bank. On perusal of Ex.P-5, returned postal cover clearly reveals that the demand notice has been returned with a postal shara "Not Claimed, Returned to Sender".
41. It is important to note on perusal of address of the accused shown in notice as well as cause title of the complaint, they are properly addressed and sent through RPAD to the correct address of the accused. So in view of 26 C.C.No.18584/2019 Sec 27 of General Clauses Act 1897 as well as ratio laid down by Hon'ble Apex Court in the Judgment reported in (1999)7 SCC 510 (K. Bhaskaran Vs. Sankaran Vaidhyan Balan), (2017)5 SCC 373 (N. Paramesharan Unni V/s. G. Kannan) and another judgment (2004)8 SCC 774 (V. Raja Kumari V/s. P. Subbarama Naidu and another) wherein it is held that:
"Giving of notice is distinguished from receiving of the notice"
"On the part of the payee he has to make a demand by "giving a notice" in writing. If that was the only requirement to complete the offence on the failure of the drawer to pay the cheque amount within 15 days from the date of such "giving", the travails of the prosecution would have been very much lessened. But the legislature says that failure on the part of the drawer to pay the amount should be within 15 days "of the receipt" of the said notice. It is, therefore, clear that "giving notice" in the context is not the same as receipt of notice. Giving is a process of which receipt is the accomplishment. It is for the payee to perform the former process by sending the notice to the drawer at the correct address"27 C.C.No.18584/2019
"A payee can send the notice for doing his part for giving the notice. Once it is dispatches his part is over and the next depends on what the sendee does"
It is also held that:
"It is clear from Section 27 of General Clauses Act, 1897 and Section 114 of the Evidence Act, 1872, that once notice is sent by registered post by correctly addressing to the drawer of the cheque, the service of notice is deemed to have been effected. When a notice is sent by registered post and is returned with 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. Then requirements under proviso (b) of Section 138 stand complied with if notice is sent in the prescribed manner. However, the drawer is at liberty to rebut his presumption"
42. So, in the light of above ratio, if the present facts and situations are analyzed, as I have already pointed out that complainant has given notice in writing and same is sent through RPAD to the proper address of the accused. So, it is construed as deemed service. Moreover, accused has not placed any contrary evidence to prove that above 28 C.C.No.18584/2019 said notice was sent to wrong address and he is not liable for non-service of legal notice.
43. So on considering the oral coupled with the documentary evidence of the complainant, they clearly proved that complainant has complied with mandatory requirements as specified U/s.138(a) and (b) of N.I. Act. Whereas, accused has not paid the cheque amount within specified time, inspite of service of demand notice. Hence, accused has committed offence punishable U/s.138 of NI Act. Hence, I hold point No.2 in Affirmative.
44. Point No.3: For the foregoing reasons discussed on points No.1 and 2, I proceed to pass the following:-
ORDER Acting under Section 255(2) r/w 264 of Cr.P.C., the accused is hereby convicted for the offence punishable u/S.138 of Negotiable Instruments Act.
(V. NAGARAJA) XXI ADDL. C.M.M., BENGALURU.
On considering the facts and circumstances of the case, accused is hereby sentenced to pay fine of Rs.2,05,000/- (Two Lakh and Five Thousand only). In default he shall undergo simple imprisonment for a period of 2 (Two) months.29 C.C.No.18584/2019
In view of Section 357 of Cr.P.C., complainant is entitled for compensation of Rs.2,00,000/- (Two Lakhs only) out of above said fine amount.
After collecting the above fine amount, office is directed to pay Rs.2,00,000/- (Two Lakhs only) to complainant as compensation and defray remaining fine amount of Rs.5,000/-
(Five Thousand only) to state, after appeal period is over.
However, accused shall execute personal bond of Rs.2,05,000/- in view of Sec.437(A) of Cr.P.C.
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
(Directly dictated to Stenographer on computer, computerized by him, corrected and then pronounced by me in the open court on this the 20th day of February, 2020) (V. NAGARAJA) XXI ADDL. C.M.M., BENGALURU.
ANNEXURE LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
PW-1 : Shobharani LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P-1 : Cheque
Ex.P-2 : Bank Endorsement
Ex.P-3 : Copy of Legal Notice
Ex.P-4 : Postal Receipt
Ex.P-5 : Returned Postal Cover
LIST OF WITNESSES EXAMINED FOR THE DEFENCE:
DW-1 : Narayanappa 30 C.C.No.18584/2019 LIST OF DOCUMENTS MARKED FOR THE DEFENCE:
Ex.D-1 : Medical Certificate
Ex.D-2 : Leave Sheet
Ex.D-3 : Letter
Ex.D-4 : Cancelled Cheque
Ex.D-5 : Bank Account Statement
(V. NAGARAJA)
XXI ADDL. C.M.M., BENGALURU.