Bangalore District Court
Zanav Home Collections vs Smt.Asha Devi on 13 July, 2018
IN THE COURT OF THE XXV ADDL. CHIEF
METROPOLITAN MAGISTRATE, AT BANGALORE
Dated this 13th day of July, 2018.
Present: Smt Shirin Javeed Ansari, BA LL.B(Hon's)LL.M
XXV Addl. Chief Metropolitan Magistrate,
Bangalore.
C.C.No.26485/2014
Complainant: Zanav Home Collections.
A Partnership firm having its
Registered office at # 38/3
Block 2 , Lakshmi Industrial
Complex,
Hosur Road, Garvebhavipalya,
Madiwala P.O.
Bangalore 68.
Represented by its Manager -
Finance
Sri Shivashankar H.R.
( By Sri .K.S.H - Advocate )
- Vs -
Accused: Smt.Asha Devi.
W/of.Sri UttamChand Sethia
No.192/1, Anantharamaiah
Compound
second main road, Mysore Road
Chamrajpet
Bangalore 18.
( By Sri C.K.N. Advocate )
Offence complained of: U/s. 138 of Negotiable Instruments
Act.
Plea of accused: Pleaded not guilty.
2 C.C.No. 26485/2014
Final Order: Accused is Convicted.
Date of order: 13.7.2018.
JUDGMENT UNDER SEC.355 OF CR.PC
The complainant filed this complaint under
Sec.200 Cr.P.C. against the accused for the offence
punishable under Sec.138 Negotiable Instruments Act
(Herein after called as N.I.Act for reference)
2. The case of the prosecution is as under :
The complainant is a partnership firm interalia
engaged in the business of manufacture and export
of cushion cover, curtain mattress and textile. The
complainant is represented by its Manager Finance,
Sri Shivashankar H.R.. The complainant further
submits that the accused and her daughter Miss
U.Bindu were the joint owners of the immovable
property comprising of land and building No.88/17-
18 and 19, Khata No.44 & 45, Ward No.7,
Singasandra village, Hongasandra Panchayat, Begur
Hobli, Bangalore. The complainant further submits
that they had entered into agreement of lease
3 C.C.No. 26485/2014
dt.1.12.2011 with the land owner in respect of the
schedule premises and were thus tenants in respect
of the schedule premises since 1st November , 2011.
The complainant further submits that in terms of the
said agreement, complainant paid Rs.4,80,000/- as
refundable security deposit and has further agreed to
pay the monthly rent as stipulated in the said
agreement.
3. The complainant further submits that
although the lease was to expiry on 30.11.2014 in
terms of the agreement, it was mutually agreed by the
complainant and the land owner to terminate
agreement by 30.6.2014 and the complainant agreed
to vacate and hand over vacant possession of the
schedule premises after receiving security deposit
amount determined by the complainant and the
accused at Rs.2,70,000/- after adjusting certain
deficiency noticed in the schedule premises during the
inspection of the schedule premises.
4. The complainant further submits that in
terms of the above agreement, the complainant duly
4 C.C.No. 26485/2014
vacated the schedule premises on 24.6.2014 and
handed over vacant possession of schedule premises
to the accused. Towards repayment of the agreed
refundable security deposit money of Rs.2,70,000/-
the accused herein had issued a cheque bearing No.,
062006 dt.24.6.2014 drawn on Corporation Bank ,
Mysore Road branch, Bangalore for Rs.2,70,000/- in
favour of the complainant .
5. When the complainant presented the above
said cheque for encashment on 25.6.2014 to their
bank i.e Syndicate Bank, Shoolay Circle, Bangalore
the cheque was dishonored and returned with
endorsement "payment stopped by the drawer". The
complainant on becoming aware of dishonor of the
cheque, got issued legal notice dt.18.7.2014 by RPAD .
It is further submitted that the notice sent on
18.7.2014 returned unserved with shara "partly left".
It is submitted that statutory notice is sent to the last
known address of the accused as mentioned the
agreement. But, the accused has failed to make
5 C.C.No. 26485/2014
payment and has committed an offence punishable
u/s.138 Negotiable Instrument Act .
6. The complainant further submits all the
conditions necessary for taking of cognizance of the
offence committed by the accused u/s.138 Negotiable
Instrument Act are fulfilled. Therefore, the
complainant prays to convict the accused person and
to award compensation to the complainant for the
cheque amount and interest thereon at 18% p.a from
the date of the cheque till realization. Hence, this
complaint.
7. In pursuance of the process issued, the
accused appeared before the court on 25.10.2017 and
is on bail.
8. Copy of the prosecution papers are
furnished to the accused as required under law.
9. Plea under Sec.138 N.I.Act is framed , read
over and explained to the accused in vernacular. The
accused pleaded not guilty and claimed the trial.
10. PW1 got examined and got marked the
documents at Ex.P.1 to Ex.P.6 for the complainant .
6 C.C.No. 26485/2014
11. The incriminating circumstances found in
the case of prosecution against the accused is read
over and explained to the accused in vernacular. The
accused denied the same. No oral or documentary
evidence lead on behalf of the accused.
12. Heard arguments and perused the material
on record.
13. On the basis of the contents of the
complaint the following points arise for my
consideration. :
1. Whether the complainant proves
beyond reasonable doubt that
the accused is/are guilty of
alleged offence?
2. What order ?
14. My findings to the above points
are as follows:
Point No.1 :In the Affirmative .
Point.No.2 :As per final order for
the following:
REASONS
15.Point No.1: The complainant has filed the
complaint alleging that the accused has committed
7 C.C.No. 26485/2014
an offence punishable u/s.138 Negotiable Instrument
Act.
16. The complainant is a partnership firm
interalia engaged in the business of manufacture and
export of cushion cover, curtain mattress and textile.
The complainant is represented by its Manager
Finance, Sri Shivashankar H.R.. The complainant
further submits that the accused and her daughter
Miss U.Bindu were the joint owners of the immovable
property comprising of land and building No.88/17-
18 and 19, Khata No.44 & 45, Ward No.7,
Singasandra village, Hongasandra Panchayat, Begur
Hobli, Bangalore. The complainant further submits
that they had entered into agreement of lease
dt.1.12.2011 with the land owner in respect of the
schedule premises and were thus tenants in respect
of the schedule premises since 1st November , 2011.
The complainant further submits that in terms of the
said agreement, complainant paid Rs.4,80,000/- as
refundable security deposit and has further agreed to
8 C.C.No. 26485/2014
pay the monthly rent as stipulated in the said
agreement.
17. The complainant further submits that
although the lease was to expiry on 30.11.2014 in
terms of the agreement, it was mutually agreed by the
complainant and the land owner to terminate
agreement by 30.6.2014 and the complainant agreed
to vacate and hand over vacant possession of the
schedule premises after receiving security deposit
amount determined by the complainant and the
accused at Rs.2,70,000/- after adjusting certain
deficiency noticed in the schedule premises during the
inspection of the schedule premises.
18. The complainant further submits that in
terms of the above agreement, the complainant duly
vacated the schedule premises on 24.6.2014 and
handed over vacant possession of schedule premises
to the accused. Towards repayment of the agreed
refundable security deposit money of Rs.2,70,000/-
the accused herein had issued a cheque bearing No.,
062006 dt.24.6.2014 drawn on Corporation Bank ,
9 C.C.No. 26485/2014
Mysore Road branch, Bangalore for Rs.2,70,000/- in
favour of the complainant .
19. When the complainant presented the above
said cheque for encashment on 25.6.2014 to their
bank i.e Syndicate Bank, Shoolay Circle, Bangalore
the cheque was dishonored and returned with
endorsement "payment stopped by the drawer". The
complainant on becoming aware of dishonor of the
cheque, got issued legal notice dt.18.7.2014 by RPAD .
It is further submitted that the notice sent on
18.7.2014 returned unserved with shara "partly left".
It is submitted that statutory notice is sent to the last
known address of the accused as mentioned the
agreement. But, the accused has failed to make
payment and has committed an offence punishable
u/s.138 Negotiable Instrument Act .
20. The complainant further submits all the
conditions necessary for taking of cognizance of the
offence committed by the accused u/s.138 Negotiable
Instrument Act are fulfilled. Therefore, the
complainant prays to convict the accused person and
10 C.C.No. 26485/2014
to award compensation to the complainant for the
cheque amount and interest thereon at 18% p.a from
the date of the cheque till realization.
21. In order to prove his case, the complainant
is examined as PW 1. The complainant has reiterated
the complaint averments in the sworn statement
affidavit which was also treated as his chief-
examination . The complainant further relied on the
documents at Ex.P.1 to Ex.P.6. Ex.P.1 is the
agreement of lease entered into by Smt.Asha Devi i.e
the accused , Miss U Bindu daughter of the accused
and M/s.Zenav Home collections represented by its
Managing Partner Sri Ravi Khemka. Ex.P.2 is the
cheque in question dt.24.6.14 bearing 062006 of
Corporation Bank for Rs.2,70,000/-. Ex.P.3 is the
cheque return memo dt.27.6.2014. Ex.P.4 is the legal
notice. Ex.P.5 is the postal cover. Ex.P.6 is the postal
acknowledgement.
22. The accused has not lead her oral evidence
but has raised her defence by way of cross
examination of PW 1.
11 C.C.No. 26485/2014
23. That it is the defence of the accused person
that she is the owner of the schedule premises and
the complainant was a tenant under her. The case of
the complainant suffers from many failures. The
complainant has played fraud upon the accused
person. The accused is an aged illiterate lady and as
such the complainant has managed to see that no
notice should be served upon the accused person and
filed false case against her. The complainant has
caused many damages to the schedule premises and
infact the complainant is due to the accused person
with regard to the payment of rent. Hence, the
accused prays for acquittal and dismissal of the
complaint.
23. It is not in dispute between the parties that
the accused is the owner of the schedule premises and
the complainant is tenant under her. The parties
have also not disputed the lease agreement marked at
Ex.P.1.
24. During the course of arguments, learned
counsel for the complainant vehemently argued
12 C.C.No. 26485/2014
before the court that the tenure of the lease was 3
years. But 5 months before the said tenure, the
parties had to terminate the tenancy and adjustments
done to the damages as per the mutual agreement
between the parties. As per the said mutual
agreement itself after calculating the damages done to
the schedule premises the parties agreed that out of
advance amount of Rs.4,80,000/- as narrated in
Ex.P.1, the lease agreement, the accused has to return
Rs.2,70,000/- to the complainant and accordingly the
accused issued a cheque in favour of the complainant.
The said cheque when presented returned for the
reason "payment stopped by the drawer".
25. It is further argued by the learned counsel
for the complainant that the accused has not lead
her defence evidence and entirely depended on the
cross examination of PW 1. As per the terms of the
agreement, there is lock in period wherein the party
has no option to terminate the lease. But, on careful
perusal of Ex.P1 point No.4.2 which shows that the
lessor shall be entitled to retain the security deposit
13 C.C.No. 26485/2014
till handing over the vacant premises by the lessee to
the lessor and after deducting any outstanding dues,
damages etc in accordance with the provision herein.
And accordingly the parties mutually agreed upon and
after deduction of the damages etc, the accused issued
the cheque in question .
26. It is also argued by the learned counsel for
the complainant that no doubt the complainant had
retained second set of keys of the schedule premises .
But, it was only in order to secure the encashment of
the cheque. Admittedly, after the mutual agreement
/understanding between the parties, the accused
issued the cheque in question. But, under what
circumstances, the accused gave stop payment
instructions to her banker has not been clarified by
the accused before this court. It is also not clarified by
the accused person that whether she had sufficient
balance in her account and despite of that she has
given stop payment instructions to her banker is also
not forthcoming. Therefore, the document , produced
by the complainant are so very clear that the
14 C.C.No. 26485/2014
complainant has proved his case beyond reasonable
doubt, and the accused has utterly failed to
probabalize her defence and has committed an offence
punishable u/s.138 Negotiable Instrument Act .
Hence, prayed for conviction of the accused person
and award of compensation.
27. On the other hand, the learned counsel for
the accused vehemently argued before this court that
the case of the complainant suffers from many
failures. The complainant has played fraud upon the
accused person. The accused is an aged illiterate lady
and deliberately the complainant has issued the notice
to the accused on her old address. Even the accused
has not been served with the summons and it was
only when the police tried to contact them on the
telephone, the accused came to know that the
complainant has initiated the proceedings against
her.
28. It is further argued by the learned counsel
for the accused that the agreement produced by the
complainant at Ex.P.1 is not duly stamped. In fact,
15 C.C.No. 26485/2014
there are 2 lessors in the said agreement, i.e the
accused and her daughter U.Bindu and there is no
clarity as to who has to pay what amount.
29. The learned counsel for the accused has
also argued that no notice has been served upon the
accused person. No postal receipt is produced by the
complainant to show that the notice was dispatched
to the address of the accused person and there are no
materials to show the service of notice. Therefore,
unless this aspect of the matter is proved by the
complainant, it has to be believed that the
complainant has not crossed the hurdles of Sec.138
of Negotiable Instrument Act.
30. Learned counsel for the accused further
argued that there is material alteration done in the
cheque in question. There is interpolation with regard
to the date mentioned on the cheque. It raises a doubt
for the benefit of which the accused is entitled for.
The complainant has not explained the said doubt.
Therefore, the benefit of said doubt goes to the
accused person.
16 C.C.No. 26485/2014
31. During the arguments learned counsel for
the accused referred the decision reported in (2005) 4
SCC 605 in between MCD V/s. State Of Delhi &
ANR. wherein it is held that
"Judicial process - fraud on court,
litigant withholding vital document or
suppressing material fact in order to
gain advantage in the case, held ,
would be guilty of playing fraud on the
court as well as on the opposite party
- person whose case is based on false
hood can be summarily thrown out at
any stage of litigation - on fact such
conduct of the respondent strongly
disapproved by Supreme Court, it
disentitled the respondent from
getting any relief or assistance from
the court-respondent directed to pay
sum of Rs.10,000/- by way of cost to
appellant".
32. The learned counsel further referred to
decision reported in Crl.A.No.2218/2006 DT.
17.2.2012 in between K.M.Nagaraj V/S.
T.C.Govinde Gowda where it is discussed that :
17 C.C.No. 26485/2014
"It is for the complainant to
establish, that the alternation made in
the cheque was with the consent of
both the sides or was made by the
respondent himself. In the absence of
any such evidence it amounts to
material alteration which renders the
cheque unenforceable".
33. Learned Counsel for the accused also
referred the decision reported in (2000) (1) SCC 397
in between Sridhar M.A. v/s. Metalloy N Steel
Corporation wherien it is held that:
"Negotiable Instrument Act 1881
- Sec.138 - Notice - deemed service of
notice - notice should be deemed to
have been served as a matter of course
- Appellant alleging to have not
received the notice - held on fact -
appellant entitled to benefit of doubt".
34. Learned Counsel for the accused also
referred to the decision reported in (1999 ) 8 SCC
221 in between Central bank of India & Anr
v/s.Sanxons Farms and others wherein it is held
that :
18 C.C.No. 26485/2014
"Nature and object of notice -
held is to give a chance to the drawer
of the cheque to rectify his mistake
and to protect honest drawer -thus
notice must make the demand for
payment of the amount of the cheque.
Last line of notice stating kindly
arrange to make the payment to avoid
unpleasant action of my client - held
on facts High Court erred in over
looking this demand for payment and
quashing pending criminal
proceeding u/s.482 of Cr.P.C.
Notice form of - held , provisions
of Sec.138 proviso clause b prescribe
no form of notice - requirement is
only that notice (i) be in writing (ii) be
given within 15 days from receipt of
information regarding return of
cheque unpaid and (iii) a demand for
payment of the amount of the cheque
be made in the notice.
Notice of demand - Service of such
notice , held , a condition precedent
for filing a complaint u/s.138".
35. The learned counsel also referred the
decision reported in (2008) 2 SCC 321 and the
19 C.C.No. 26485/2014
decision dt.6.8.1981 in between N.Narayanaswamy
Bangalore V/S. Madan Lal , Bangalore , wherein it is
held that :
"Sec.87- expression material
alteration - promisee writing rate of
interest subsequently at the blank
space - held amounted to material
alteration - Sec.20 has no application
promisee has no liberty to fill it up"
36. Depending upon the above mentioned
decisions learned counsel for the accused argued
orally as well as submitted in the written arguments
that the complainant has suppressed the material
facts before the court which are admitted by PW 1
during his cross examination. On this ground alone ,
the complaint is liable to be dismissed.
37. The learned counsel further submitted in
the written arguments that it was mutually agreed by
the complainant and the owner i.e accused to
terminate agreement on 30.6.2014. There was no such
understanding agreed by the accused. To this effect
there is no documentary evidence before this court.
20 C.C.No. 26485/2014
During the cross examination of PW 1 dt.4.6.2008, in
para No.2 PW 1 has deposed contrary to the above
averment in the complaint that he does not remember
when did he seek to vacate the premises and he is
not sure about when he communicated about his
termination. Hence, the version of mutual agreement
cannot be believed. In the same para in the cross
examination PW 1 admits about lock in period and
further admits about the second set of keys and
termination notice by stating that it is true to say that
he did not hand over second set of keys at that point
of time, subsequently, also he has not handed over
second set of keys nor issued notice of termination of
the lease.
38. If this argument, of the learned counsel for
the accused is considered that it was not mutually
agreed between the complainant and the accused
pertaining to termination of lease on 30.6.2014, and
there is no such understating agreed by the accused
and to this effect there is no document/evidence
before this court If this is so, it arises a doubt as to
21 C.C.No. 26485/2014
how an advance amount of Rs.4,80,000/- came to be
reduced at Rs.2,70,000/- and why did the accused
issue the cheque only for Rs.2,70,000/- instead of
Rs.4,80,000/-. No doubt there is no notice pertaining
to termination of lease since it was mutually agreed
between the parties and the outcome of said mutual
understanding is the reduction of advance amount .
39. With regard to handing over the second set
of key, it is clearly admitted by the learned counsel for
the complainant as well as the complainant himself
that they did not hand over the second set of keys to
the accused at the time of vacating the schedule
premises because the accused had returned the
advance amount of Rs.2,70,000/- in the form of
cheque not in the form of cash. As per the
complainant and their counsel, retaining the second
set of keys is security for encashment of the cheque.
Therefore, the arguments canvassed by the learned
counsel for the accused cannot be considered.
40. Learned counsel for the accused further
submitted in the written arguments that earlier to the
22 C.C.No. 26485/2014
presentation of the cheque, the accused had intimated
the complainant not to present the cheque for
encashment since 'stop payment instruction' would
be given to her banker . No doubt this aspect of the
matter is admitted by the complainant in his cross
examination. But solely depending upon this
admission, it cannot be said that the accused has no
liability under the present cheque. If at all the entire
cross examination portion of PW 1 and the defence of
the accused is taken into consideration in toto, the
admission as stated amounts to stray admission and
depending upon the stray admissions, the accused
cannot be acquitted.
41. It is also submitted by the learned counsel
for the accused in the written arguments that there is
material alteration of Negotiable Instrument i.e
cheque in question-Ex.P.2 and that renders the
cheque unenforceable. But, here in the present case,
the cheque in question is dishonored for the reason
"payment stopped by the drawer". It has not been
gone in detail that whether the alteration appearing to
23 C.C.No. 26485/2014
the date is a material alteration or not. Only the bank
official is a competent witness to depose regarding
this, since the payment of the cheque in question is
stopped by the accused person and the bankers have
considered this as a sole reason . If there was no 'stop
payment instruction' it would have come to the light
that whether the alteration as stated above is
material alteration or not.
42. No doubt the ink used in the signature
appearing in the cheque and the ink used to write the
date are different. But as suggested by the accused in
the cross examination of PW 1 himself that the cheque
belonging to the accused person has been given by one
of the daughter of the accused Miss Bindu to the staff
of the complainant . Therefore, in the absence of any
sufficient proof of material in this regard, even this
aspect of the matter cannot be considered against the
complainant .
43. Further the learned counsel for the accused
vehemently argued before this court and submitted in
his written arguments that the complainant has not
24 C.C.No. 26485/2014
dispatched the legal notice Ex.P.4 to the accused .
There is no document to show that it was ever sent to
the accused. The complainant has fabricated Ex.P.4
to Ex.P6 for the purpose of this case. As far as Ex.P.4
is concerned the original office copy is not produced or
marked. Photo copy of the same is marked which is
impermissible and no reasons are assigned for the
same. What is even more starling is that there is no
postal receipt for the dispatch or posting of the legal
notice which is a crucial document. It is common
knowledge that on sending letter by RPAD, the postal
authority generates 2 receipt. One receipt in the name
of intended recipient is handed over back to the
sender. It is this crucial document that has not been
produced. This document would have contained the
name of intended recipient, namely the accused . The
second receipt issued by the postal authority is affixed
on the postal cover marked at Ex.P.5. But this does
not contain the name of accused. Hence there is no
document to show that Ex.P.4 , notice has been served
on the accused person . PW 1 has clearly admitted
25 C.C.No. 26485/2014
that he has not produced any documents to show that
he has dispatched the notice Ex.P.4 to the accused.
Hence, the learned counsel for the accused submitted
that there is no proper service of legal notice upon the
accused person .
44. ON careful perusal of the material available
on record, it is found that the complainant has
produced Ex.P.5, the postal cover sent to the address
of the accused person (the same address which is
mentioned in ExP.1, the Lease Deed ) and the same
has returned to the complainant as 'party left'
which also bears the seal of the postal authority. When
the postal cover duly sent to the accused address has
returned to the complainant , that itself is best proof
to show that it was dispatched to the accused at the
given address. No doubt the complainant has not
produced the postal receipt. But, the production of the
postal cover in this regard itself is sufficient.
45. In reply to the arguments canvassed by the
learned counsel for the accused learned counsel for
the complainant referred the decision reported in
26 C.C.No. 26485/2014
AIR 2014 SC 3057 in between Ajith Seeds Ltd
V/s.Gopala Krishnaiah wherein it is held that :
"Negotiable Instrument Act (26
of 1881) Sc.138 - Dishonor of
cheque - complaint - it is not
necessary to aver in the complaint
that the notice was served upon the
accused - order of High court
quashing complaint on the ground
that there was no proof either that
the notice was served or it was
returned unserved - is erroneous
and set aside".
46. Depending upon it the learned counsel for
the complainant argued that the notice is duly
dispatched to the address of the accused and the
accused has managed to avoid the service of notice
upon her. Therefore, on this aspect of the matter the
complaint cannot be dismissed
47. Learned counsel for the complainant further
referred the decision reported in (1998) Cril L J 10
in between Montari Industries ltd, and Anr v/s.
State Of Gujarath & Anr dt.4.7.1997. Depending
upon this, the learned counsel for the complainant
argued that the accused has given stop payment
instructions to her bank. But she has not satisfied the
27 C.C.No. 26485/2014
court that whether she has sufficient standing balance
in her account to honor the cheque and despite, of
that she has given 'stop payment' instruction to the
bank. Unless the accused proves this aspect of the
matter , her defence in this regard cannot be
considered. Therefore, the learned counsel for the
complainant prayed to convict the accused person .
48. In this back ground I have carefully gone
through the oral evidence lead by the complainant .
PW 1 is subjected to cross examination by learned
counsel for the accused. Admittedly, the lease
commenced on 1st of December, 2011 and the term of
the period was for 3 years.
49. On careful perusal of the questions raised
by the learned counsel for the accused during cross
examination it appears that the complainant has
vacated the schedule premises in the year 2014. This
shows that the complainant has been a tenant from
the year 2011 till 2014. Though the learned
counsel for the accused submits in his arguments
that the lease is not in accordance with law, but the
28 C.C.No. 26485/2014
accused herself has kept quite for period of 3 years
and has enjoyed the rent. Though the learned
counsel for the accused argued before the court that
the accused is an aged illiterate lady, but, admittedly
there are 2 lessors as per Ex.P.1 one is the accused
SMT. Asha Devi and another is Miss U.Bindu the
daughter of Asha Devi. It is clearly stated by the
complainant in his cross examination that he has
been dealing with the daughter of the accused i.e
Mrs.Rinkle Sethia. This aspect of the matter goes to
show that it was not the accused alone who was
dealing with the complainant but the daughters of the
accused Smt. Rinkle and another lessor as per Ex.P.1
Miss.Bindu were also aware of the transaction entered
into between the complainant and the accused .
50. It is further stated by the complainant that
the daughter of the accused Smt.Rinkel Sethia was
dealing with the complainant with regard to the
formalities associated to the termination and handing
over of the premises and in this regard another
daughter of the accused Miss Bindu was also
29 C.C.No. 26485/2014
involved. Therefore, under these circumstances of the
case, the arguments canvassed by the learned counsel
for the accused that the accused is an aged illiterate
lady upon whom the complainant has tried to play
fraud does not hold water.
51. Further , it is the say of the accused that
the complainant has made many alterations in the
premises after he occupied the same and at the time
of vacating the premises by the complainant, the
accused noticed the damages caused to the building.
But, the accused person has not placed any materials
to show this aspect of the matter. It is further
clarified by the complainant in his cross examination
that though advance of Rs.4,80,000/- was paid to the
accused person at the time of commencement of the
lease, but, subsequently after the discussion between
the complainant and the accused depending on the
circumstances and the situation, the complainant
thought that he should not argue for particular
amount , hence, an amount of Rs.2,70,000/- came to
be settled between them towards the payment of
30 C.C.No. 26485/2014
advance amount by the complainant to the accused
person. It is also stated by the complainant that he
had discussion with the daughter of the accused
pertaining to getting new tenant to the schedule
premises since the complainant was vacating the
premises before the agreed period. But, it was not
fortified. But this condition of getting a new tenant to
the accused person provided the accused would not
charge the complainant for lock in period was not the
condition between the parties. But if this was so, it is
the burden upon the accused person to prove the
same by way of defence .
52. With regards to service of legal notice
upon the accused person it is necessary to state that
whether the expression 'serve' or either of the
expression 'give' or 'send' or any other expression is
used then unless a different intention appears, the
service to shall be deemed to be effected by properly
addressing, and posting by registered post a letter
containing the document , and, unless the contrary
is proved to have been effected at the time with which
31 C.C.No. 26485/2014
the letter would be delivered in the ordinary course of
post.
53. No doubt Sec.27 gives rise to presumption
that service of notice has been effected when it is sent
to the correct address by registered post. In view of
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
inspite of 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. 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.
54. It is thus clear that Sec.114 of Evidence
Act enables the court to presume that in the common
32 C.C.No. 26485/2014
course of natural events the communication would
have been delivered at the address of the addressee.
Sec.27 of the General Clause Act give rise to
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
inspite 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
55. Here in the instant case, as stated supra
the court has made it clear that the complainant has
produce the postal cover which has returned back to
him with the seal of the postal authority which was
duly sent to the address of the accused person shown
in Ex.P.1, the lease deed itself shows that the notice
was duly dispatched to the address of the accused
person
56. Another point raised by the complainant
before this court that simple advance intimation not to
present the cheque without making arrangement for
sufficient funds in the account would not exonerate
33 C.C.No. 26485/2014
the drawer from the criminal liability as contemplated
u/s.138 Negotiable Instrument Act. The advance
intimation not to present the cheque should contain
detailed sufficient and legally tenable reasons.
Otherwise, anybody by giving a cheque would induce
somebody to act on it and without making
arrangement of funds would simply inform the payee
not to deposit and would get rid of the liability. To say
so is to encourage dishonesty and frustrate the object
of Sec.138 of the Act. If the drawer after issuance of
the cheque informs the drawee for not presenting the
cheque for encashment without sufficient detailed and
legally tenable reasons and without making
arrangement for sufficient funds in his account, one
has to raise statutory presumption that the cheque
was given with dishonest intention to induce the payee
to act on it and thus shall be deemed to have
committed the offence.
57. The learned counsel for the accused has
vehemently stated before the court that as per law
the accused has given prior intimation to the
34 C.C.No. 26485/2014
complainant not to present the cheque since 'stop
payment' instruction would be given and the reason
for this is non handing over the second set of key of
the schedule premises. No doubt the complainant
has admitted this aspect of the matter .If the facts
and circumstances of the case is taken into
consideration, it shows that since as per the mutual
agreement, the advance amount refundable by the
accused to the complainant was reduced from
Rs.4,80,000/- to Rs.2,70,000/- and since the accused
had issued the cheque to the complainant instead of
the cash, the complainant retained the second set of
keys with him as security for encashment of the
cheque. This reason of the complainant appears to
be reasonable. Merely on this ground the accused
after issuing the cheque in question, cannot
subsequently give simple advance intimation to the
complainant not to present the cheque. It is the
burden casted upon the accused person for making
arrangements for sufficient funds in the account.
Mere giving an advance intimation will not exonerate
35 C.C.No. 26485/2014
the accused from the criminal liability as contemplated
u/s.138 of act . If at all the accused makes simple
advance intimation not to present the cheque, it
should contain detailed sufficient and legally tenable
reason . Otherwise, any person by giving a cheque
would induce somebody to act on it and without
making arrangement of funds would simply inform the
payee not to deposit and get rid of the liability. It is
something like encouraging dishnoesty and frustrate
the object of sec.138 of the Act. If at all the accused
informed the complainant/ drawee for not presenting
the cheque for encashment without sufficient detailed
and legally tenable reason/ grounds and without
making arrangement for sufficient funds in her
account, in the opinion of this court, statutory
presumption has to be raised that the cheque was
given with dishonest intention to induce the
complainant to act on it and thus the accused shall
be deemed to have committed the offence. The
accused has not made any efforts before the court to
probabalize that despite of having sufficient balance in
36 C.C.No. 26485/2014
her account, she made stop payment' instruction to
her banker as well as to the complainant . Therefore,
under these circumstances of the case, the admission
made by the complainant pertaining to the prior
intimation made by the accused person with regard
to not to present the cheque in question does not
entitle the accused for acquittal for the reason stated
supra. Therefore, looking from any angle it cannot be
said that the accused does not owe any liability
towards the complainant . Hence, in the given facts
and circumstances, of the case and for the reasons
stated supra, I answer Point No.1 in the affirmative.
58. Point No.2: In view of the reasons stated
and discussed above, the complainant has proved the
guilt of the accused for the offence punishable under
Sec.138 Negotiable Instruments Act .
Hence, I proceed to pass the following :
37 C.C.No. 26485/2014
ORDER
Acting u/s.255(2) Cr.P.C accused is convicted for the offence punishable under Sec.138 Negotiable Instruments Act and sentenced to pay fine of Rs.2,95,000/-.(Rs.Two Lakhs Ninety Five only) In default, shall under go SI for a period of one year .
Acting under Section 357 (1) (b) of Cr.P.C, out of the fine amount the complainant is entitled for Rs.2,90,000/-.(Rs.Two Lakhs Ninety Thousand Only) towards compensation amount.
Acting under Section 357 (1) (a) of Cr.P.C, the remaining fine amount of Rs.5,000/- (Rupees Five Thousand Only) is confiscated to the State .
Furnish free copy of judgment and order to convicted-accused.
(Dictated to the Stenographer directly on the computer, typed by her , corrected and signed then pronounced by me in the open court on this the 13th day of July , 2018).
38 C.C.No. 26485/2014(SHIRIN JAVEED ANSARI ) XXV A.C.M.M., BANGALORE.
ANNEXURE
1) LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
P.W.1 : Sri Ravi Kemkha .
2) LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P.1 : Lease agreement.
Ex.P.2 : Cheque. Ex.P2(a) : Signature of the accused. Ex.P.3 : Cheque return memo . Ex.P.4 : Office copy of legal notice. Ex.P.5 : Postal cover. Ex.P6 : Postal acknowledgement.
3) LIST OF WITNESSES EXAMINED FOR THE ACCUSED:- -
-Nil-
4) LIST OF DOCUMENTS MARKED FOR THE ACCUSED:
-Nil-
( SHIRIN JAVEED ANSARI ) XXV A.C.M.M.,BANGALORE.39 C.C.No. 26485/2014 40 C.C.No. 26485/2014