Karnataka High Court
P.K. Radha Krishnan vs Vijayan Nambiar on 25 August, 2005
Equivalent citations: 2006(1)ALD(CRI)47, I(2006)BC535, [2006]130COMPCAS530(KAR), 2005CRILJ4184, ILR2005KAR4486, 2005(5)KARLJ473
Author: K. Bhakthavatsala
Bench: K. Bhakthavatsala
ORDER K. Bhakthavatsala, J.
1. This is a Criminal Revision Petition filed by the Complainant under Section 397 read with Section 401 of the Code of Criminal Procedure Challenging the judgment dated 8.10.2002 made in Criminal Appeal No. 702/2000 on the file of XXIII Additional Sessions Judge, Bangalore City, setting aside the judgment of conviction and sentence dated 22.11.2000 made in C C No 18732/1997 on the file of XV Additional C M M, Bangalore City, and acquitting the Accused for the offence under Section 138 of the Negotiable Instruments Act, 1881 (in short,' the Act').
2. The Respondent/Accused is represented by Sri S. V. Tilgul.
3. Heard arguments.
4. The brief facts of the case leading to the filing of the Revision Petition by the Complainant may be stated as under:
It is alleged that the Accused being a friend of the Complainant had borrowed loan of Rs. 2,00,000/- from the Complainant and agreed to pay interest at the rate of 2.5% per month and in discharge of the said liablity, the Accused had issued a post dated cheque for a sum of Rs. 2,00,000/- and requested the Complainant to present the cheque on 20.6.1997. Accordingly, the Complainant presented the cheque for realisation, but it was dishonoured on 20.6.1997 on account of "insufficient funds". The Complainant got issued a legal notice to the Accused on 23.6.1997 through RPAD as well as Under Certificate of Posting. The RPAD returned un-served. The notice sent under certificate of posting to the Accused did not return. The Accused did not pay the cheque amount. Therefore, the complainant filed a private complaint before the Additional Chief Metropolitan Magistrate praying the Court to punish the Accused for the offence under Section 138 of the Act. The Accused has denied the charge. In support of the case of the Complainant, he got himself examined as P W-1 and got marked Exs. P1 to P7. The Accused has not adduced defence evidence except getting copy of Complainant's legal notice dated 9.6.1999 marked as Ex. D1. The learned Magistrate, after hearing arguments and perusing evidence and material on record, has held that the Accused has committed an offence under Section 138 of the Act and sentenced the Accused to pay a fine of Rs. 2,30,000/- in default in payment of fine, the Accused shall undergo SI for one month. It was further ordered that if the fine amount is recovered, a sum Rs. 2,25,000/- shall be paid to the Complainant as compensation. Feeling aggrieved of the judgment of the conviction and sentence passed by the Trial Court, the Accused preferred an Appeal in Criminal appeal No. 702/2000 on the file of Sessions Judge, Bangalore. The learned Sessions Judge, after hearing arguments and perusing evidence and material on record, came to a conclusion that the Trial Court, committed an error in convicting the accused under Section 138 of the act, and therefore allowed the appeal and set aside the judgment of the Trial Court. This is impugned in this Revision Petition.
5. The Learned Counsel for the petitioner submitted that the Lower Appellate Court committed an error in holding that there was no pleading in the complaint to the effect that the notice was served, and therefore the learned Magistrate could not have taken cognizance of the offence.
6. On the Other hand, the learned Counsel appearing for the Respondent/Accused argued in support of the impugned judgment of the Lower Appellate Court.
7. In view of the arguments addressed by the learned Counsel for the parties., the only point that arises for my consideration is:
Whether the learned Sessions Judge is justified in dismissing the Complaint on the ground that there was no pleading in the Complaint to the effect that the notice was served and acquitting the accused for the offence under Section 138 of the Act?
8. My finding to the above point is in the negative for the following reasons;
9. The Respondent/Accused has not placed any material on record to establish that the address to which the legal statutory notice was sent, was not correct. Ex.P 3 is the memo dated 20.6.1997 issued by Dena Bank dishonouring the cheque for Rs. 2,00,000/- for want of "funds insufficient". Ex.P 4 is the office copy of the legal notice dated 23.6.1997 sent to the accused calling upon him to pay the amount of the cheque within 15 days from the receipt of the notice. Ex. P 5 is the un-served R P A D sent to the Accused. Ex.P 6 is the Certificate of Posting cover dated 23.6.1997 addressed to the Appellant.
10. With regard to service of notice, the learned Counsel appearing for the Petitioner/Complainant has cited two decisions reported in CEI Consultancy and Anr. v. Modi World Infotech and Anr., 2002 CRL.LJ 2731 and K Bhaskaran v. Sankaran Vaidhyan Balan and Anr., 1999 AIR SCW 3809
11. It is in the evidence of the Complainant/P. W-1 That the notice dated 23.6.1997 sent to Respondent/Accused under Certificate of Posting was not returned. The learned Single Judge of Andhra Pradesh High Court, in M/S, CEI Consultancy's case, supra, has held that "whenever notice is sent by Certificate of Posting, a presumption under Section 114 of the Evidence Act, would arise, and so it can be presumed that the letter sent under Certificate of Posting was received by the addressee" (vide para-7). Para-7 of the judgment reads as under:
"7... There is no bar for a person sending the notice of dishonour both by Certificate of Posting and also by Registered Post. What all Section 138 of the Act requires is sending of notice in writing to the drawer of the Cheque demanding payment of the amount covered by the dishonoured Cheque. The Section does not lay down that the notice of dishonour should be sent by Registered Post only. In several cases drawers of the Cheques to whom statutory notices of dishonour are sent by Registered Post, manage to evade service of the notice by getting an endorsement made by the postman that they are not available or absent or that the door is locked for seven days. Obviously with a view to get over of such return of notice sent by Registered Post, statutory notice would be sent by Certificate of Posting and also be Registered Post Acknowledgement Due. Whenever a notice is sent by Certificae of Posting, a presumption under Section 114 of the Evidence Act would arise, and so it can be presumed that the letter sent under Certificate of Posting was received by the addressee...."
The Hon'ble Supreme Court of India, in the case of K Bhaskaran's Case, Supra, has held in para-18 of the judgment, as under.
"...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 in the correct address."
It is further observed in para-24 of the judgment, as under: -
"No doubt Section 138 of the Act does not require that the notice should be given only by "Post". Nonetheless the principle incorporated in Section 27(quoted above) can profitably be imported in a case where the sender has despatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such non-service. Any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to the strategy of subterfuge by successfully avoiding the notice."
12. In view of the decision of the Apex Court, mentioned above, and the oral and documentary evidence placed on record, it is crystal clear that the Petitoner/Complainant has complied with the requirements, as required under Section 138 of the Act. The address of the Respondent/Accused has not been disputed.
13. The learned Sessions Judge has relied upon the decision of the Apex Court reported in M/S. Shakti Travel and Tours v. State of Bihar and Anr., 200(4) crimes 150 (SC) of the Apex Court and the decision rendered by learned Single Judge of this Court reported in Ramanna v. T. Jayaprakash, 1998(2) Crimes 179 and dismissed the Complaint holding that the Complainant has not mentioned about service of demand notice on the Accused. Therefore, it is necessary to look into para-8 of the Complaint. For the purpose of convenience and immediate reference, para-8 of the Complaint is excerpted hereunder:-
"8. The Complainant further submits that after which the complainant approached his counsel and caused issuance of the legal notice dated 23.6.1997, both by way of R.P.A.D. and U.C.P. However, the legal notice sent by RPAD was returned wherein the postman has not stated the reasons for return, but the legal notice sent by U.C.P. was not returned. Hence, it is presumed that U.C.P. has been received by the accused. Xerox copy of the legal notice dated 23.6.1997, postal receipts and R.P. A.D. returned are furnished herewith, and marked as Annexes-'D', 'E', T" and 'G'.
14. Keeping in view the averment viz., "Hence it is presumed that U.C.P. has been received by the accused" in para No.8 of the Complaint, it is sufficient to hold that the Complainant has pleaded as to service of notice on the Accused. The averment that "has been received by the accused" shall be construed as "service of notice". The learned Sessions Judge has mis-construed the sentence and committed an error in holding that the Complainant has not mentioned about the service of demand notice on the Accused. The learned Sessions Judge has set aside the order of conviction and sentence imposed by the Trial Court solely on that score. The Trial Court has rightly held that the Accused has committed an offence punishable under Section 138 of the Act and sentenced the Accused accordingly.
15. For the reasons said supra, I pass the following order: -
The Revision Petition is allowed and the order of the learned Sessions Judge dated 8.10.2002 made in CrL.A No. 702/2000 on the file of XXIII Addl. Sessions Judge, Bangalore City, is set aside and the judgment 22.11.2000 made in C C No. 18732/1997 on the file of XV Additional C M M Bangalore City, is restored.