Calcutta High Court (Appellete Side)
Rabin Paul vs Prasanta Kumar Dutta on 20 March, 2008
IN THE HIGH COURT AT CALCUTTA CRIMINAL REVISIONAL JURISDICTION APPELLATE SIDE Present:
The Hon'ble Mr. Justice Partha Sakha Datta C.R.R. No. 299 of 2007 Rabin Paul Vs. Prasanta Kumar Dutta With C.R.R. No. 300 of 2007 With CRAN No. 391 of 2007 Unique Engineering Works & Anr.
Vs.
Prasanta Kumar Dutta
For the Petitioner : Mr. K.B.S. Mahapatra
Ms. Rama Halder
For the Added O.P. : Mr. Joymalya Bagchi
Mr. Amarta Ghose
Judgment on : 20-03-2008
Partha Sakha Datta, J.:-
C.R.R. 299 of 2007 and C.R.R. 300 of 2007 are being disposed of by this common judgment and order because of the facts that the parties are the same, the facts are exactly identical and the questions of law as have been urged in the two revisional applications are also common.
The petitioner who was known to the opposite party herein since long before the transaction allegedly obtained loan of Rs.5 lacs from the opposite party and towards repayment of the loan he issued a cheque being No. 561248 dated 20th August, 1997 for Rs.1,50,000/- (one lac fifty thousand) drawn on ANZ Grindlays Bank, Ganesh Chandra Avenue Branch which was deposited with the bank but was dishonoured on the ground that account was closed by the petitioner as far back as 21st July, 1995. Then followed statutory notice under Section 138(b) of N.I. Act, on 22nd August, 1997 but it was returned back with the postman's remark "left the address". Then the case was instituted and trial followed. Learned Chief Judicial Magistrate of Howrah by his judgment and order dated 29th March, 2004 convicted the petitioner under Section 138 of the N.I. Act and sentenced him to suffer simple imprisonment for six months and also to pay a fine of Rs.1,50,000/- in default to suffer simple imprisonment for two months. It was directed in the order that upon realization of the fine amount the same would be paid to the complainant. This judgment and order of the learned Magistrate has been confirmed in appeal by the learned Additional Sessions Judge, 2nd Court, Howrah.
Against this appellate judgment and order confirming the judgment and order of the learned Magistrate in Case No. 854-C of 1997 this revisional application being CRR No. 299 of 2007 has been filed.
In C.R.R. 300 of 1997 the facts were that the petitioner issued a cheque for Rs.3,50,000/- (three lakhs fifty thousand) towards discharge of legal liability in favour of the complainant/opposite party on 10th August, 1998. The cheque was presented before the Bank of America, India Exchange, Calcutta and it was dishonoured with the remark 'account closed' as per the return memo of the bank dated 26th August, 1998. Statutory notice followed on 4th September, 1998. The statutory notice in the form of a letter was returned unserved on 24th September, 1998 with the remark of the postman "not claimed". Then the case was instituted. The same learned Chief Judicial Magistrate of Howrah by his judgment and order dated 31st January 2005 convicted the petitioner under Section 138 of the N.I. Act and sentenced him to suffer simple imprisonment for six months and to pay a fine of Rs.3,50,000/- in default to suffer simple imprisonment for six months and it was directed that if the fine amount was realized the entire amount would be paid to the complainant. This judgment and order passed in Case No. 915-C of 1998 was confirmed by the same learned Additional Sessions Judge, 2nd Court, Howrah by his judgment and order dated 20th December, 2006 in Criminal Appeal no. 1 of 2005. This appellate judgment is the subject matter of revision in CRR 300 of 2007.
Before the learned trial court both the parties adduced evidence and both were cross-examined by each other.
The grounds of revision in both the cases are almost one and the same. However, in C.R.R. 299 of 2007 it has been contended that the requirements of Section 138 of the N.I. Act were not met with, that lawyer's notice cannot be a substitute of the requirement of notice by the payee of the cheque, and that the notice was bad in law as it was never received by the complainant.
In C.R.R. No. 300 of 1997 the grounds of revision are that the requirements of law were not complied with, that the complainant had misused some blank cheques given to him by the petitioner on the basis of a power of attorney and a fabricated false cheque was presented to the bank, that the notice was bad in law and that the judgment and order of the appellate court in both the cases are required to be set aside.
I have gone through the evidence of the witnesses in both the cases and it appeared that cross-examination of the witnesses in both the cases were on the same line with no difference at all. Learned Advocate for the petitioner appeared and placed his arguments in support of the revisional applications on the first day of hearing but on the subsequent dates he did not appear. I have heard Mr. Amarta Ghosh, learned advocate appearing for the opposite party. As to alleged not service of notice in Complaint Case No. 854-C of 1997 wherefrom C.R.R. 299 of 2007 arose, the learned Chief Judicial Magistrate made his extensive reasonings which found favour with the appellate court. In respect of the notice there was remark of the postman "left without address". Banking on this remark it has been contended that statutory notice has not been served and in absence thereof prosecution under Section 138 of the N.I. Act was not maintainable. It has to be said at the outset that it is not the case of the petitioner that he did not reside at 4, Ganesh Chandra Chatterjee Lane, P.S. Shibpur, Howrah. That is the address he uses in his revisional application. That is the address given in the petition of complaint, and that is address given in the statutory notice. In his evidence as D.W.1 he has not stated that he did not reside in the said address. On the other hand, in the other case where he gave separate evidence, he had stated that he resides at 4, Ganesh Chandra Chatterjee Lane, Shibpur, Howrah-2 and this is his dwelling house. Where drawer of a cheque after issuance of the cheque in favour of the payee avoids receiving notice by leaving at certain hours of the day for a few consecutive days and where in such circumstances, the postman whose duty is obviously not to enquire the whereabouts of the addressee or to locate him and whose power does not extend to keep the registered envelope pending with him exceeding the permissible period would be right to say that the addressee could not be available. It is not in dispute that the notice was sent through pre-paid registered post with correct address written thereon and if in such circumstances, the notice is returned for non-availability of the addressee who could not establish in his evidence that he had been residing at a different place for a certain period of time it can be said that the notice was duly served upon the addressee. It appears from the judgment and order of the learned Chief Judicial Magistrate that the envelope was kept in the post office for seven days and two attempts were made on 25th August, 1997 and 2nd September, 1997 but the addressee could not be found out and in such circumstances the postman made the remark "left without address". Learned Magistrate in this connection referred to a decision in A.I.R. 1989 S.C. 630. The legal presumption in case of a notice properly stamped and addressed and dispatched per registered post through post office is that of service and the presumption has to be rebutted by the drawer of the cheque in case he wants to rebut the presumption. No convincing evidence has at all been adduced in either of the cases so as to have the legal presumption rebutted. In C.C. Alavi Haji vs. Palapetty Muhammad & Another, 2007(2) CLJ (SC) 153 the three Judge-Bench of the Supreme Court observed inter alia as follows:-
"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 v. Natthu Singh, AIR 1992 SC 1604, State of M.P. v. Hiralal & Ors., 1996(7)SCC 523; and V. Raja Kumari v. P.Subbarama Naidu & Anr., 2004(8) SCC 774]. It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved."
In the other case similar was the situation and the notice was returned unserved with the remark "not claimed". The same reasoning by which the defense plea has been negated in the first other case is equally applicable here. Here the accused said in his cross-examination that he resides in the address given on the petition. He has failed to rebut the presumption that he genuinely could not be available to accept the delivery of the notice for his resident at a different place other than the cited address for any certain and definite reason. It is not his clear evidence that he could not be present for a number of days at his house so as to receive the notice. On the other hand it is the contention in the revisional application as well as in his evidence as D.W.1 that that lawyer's notice is not what is contemplated in Section 138(b) of the N.I. Act. That contention has to be repelled and not so much of reasoning is really necessary therefor because an authorised agent, as a lawyer is, can issue a notice contemplated in the law on behalf of the payee of a cheque. It is plain that in both the cases the accused failed to rebut the presumption and simply to avoid the legal consequences upon dishonourment of the cheque he avoided acceptance of service. I am satisfied that the learned Chief Judicial Magistrate has very extensively dealt with the situation and has come to a correct finding that notice shall be deemed to have been properly served and presumption has been fortified because of no attempt of the rebuttal of the same by the petitioner through his own evidence having been made. The next ground which is common to both the revisional applications is that the 'account closed' does not amount to saying that the accused/petitioner had not sufficient fund in the account for dishonourment of the cheque. This argument as was taken before the learned trial court must be defeated here also as was rightly defeated there. A dishonest drawer of a cheque after issuance of cheque knowing fully well that he was unable to pay the amount can close his account before the cheque reaches the bank and such closing of the account with intention not to make payment through the encashment of the cheque amounts verily and expressively to the dishonourment of the cheque. 'Account closed' means cheque remains unpaid. The argument that no notice was served upon the petitioner and that the endorsement of the bank 'account closed' does not attract the provision of Section 138 of the N.I. Act. fails. Where the drawer of the cheque closes the account before the cheque reaches the bank the cheque is bound to be returned unpaid. A dishonest drawer of a cheque always evades payment through encashment of cheque either closing the account before the cheque is presented or by not keeping sufficient amount of money to honour the cheque for encashment.
One common ground advanced by both the cases was that the petitioner had issued some unused cheques in favour of the complainant and a power of attorney was executed in favour of the complainant who having taken advantage of such power of attorney misused the cheque for which the petitioner cannot be held responsible. I find that such a plea which has been negated by the two courts below could not be established by any amount of evidence. I have gone through the certified copy of deposition of the witnesses in case no. 854-C of 1997 and the original deposition sheets in the other case but in neither of the cases has it been established that the complainant was made over with a good number of signed blank cheques by the petitioner and the opposite party utilized the same to defraud the petitioner. The accused speaks of a power of attorney allegedly given by him in 1994 but it has not been explained what was the content of alleged power of attorney and what nexus did it have with the facts in issue. It was the evidence of the petitioner in case no.951-C of 1998 that the complainant intended to be a partner with him which he refused. Fairly speaking, it is not his evidence that the cheque in question was issued by him as a partner with the complainant. The complainant has stated in his evidence in case no. 854-C of 1997 that an unregistered power of attorney was executed by the petitioner as far back on 27th April, 1994 and it was deposited by the accused with the Bank of America. But from evidence it could not be established at all that the said power of attorney did have any relevance with issuance of two cheques in respect of the two cases nor could it be established at all that the complainant made use of such power of attorney at any point of time in furtherance of unlawful gain. On the other hand, it comes out from evidence of D.W.1 (petitioner) in case no. 915-C of 1998 that he took loan of Rs.2,60,000/- from the complainant and he paid the entire loan. This suggests that the petitioner was indebted to the complainant by receiving money. Therefore, it could not be legally pleaded and proved that there was no existence of debt or legal liability to discharge on the part of the petitioner towards the complainant.
Upon analysis of evidence of the witnesses and examining the judgments of the learned two courts below I do not find any reason to interfere with them.
I accordingly dismiss the two revisional applications. The two appellate judgments impugned are confirmed. Let a copy of the judgment and order shall be sent to the learned Chief Judicial Magistrate, Howrah, with reference to his case nos. 854-C of 1997 and 915-C of 1998 for information and necessary action. The learned Magistrate will take appropriate steps to have the sentence executed according to law. Xerox certified copy of this judgment, if applied for be given to the learned advocates for the parties on the usual undertaking.
(Partha Sakha Datta, J.)