Punjab-Haryana High Court
M/S Ajaya Industries vs Gulshan Rai Malhotra on 22 July, 2013
Author: Inderjit Singh
Bench: Inderjit Singh
In the High Court of Punjab and Haryana at Chandigarh
......
Criminal Appeal No.S-889-SBA of 2000
.....
Date of decision:22.7.2013
M/s Ajaya Industries
...Appellant
v.
Gulshan Rai Malhotra
...Respondent
....
Coram: Hon'ble Mr. Justice Inderjit Singh
.....
Present: Mr. Atul Goyal, Advocate for the appellant.
Mr. Sushil Bhardwaj, Advocate for the respondent.
......
Inderjit Singh, J.
M/s Ajaya Industries has filed this appeal against respondent- Gulshan Rai Malhotra, against the judgment of acquittal dated 4.12.199 passed by Judicial Magistrate Ist Class, Ludhiana, vide which complaint filed under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as `the Act') has been dismissed.
The brief facts of the prosecution case are that the complainant-appellant has filed complaint under Section 138 of the Act against accused/respondent Gulshan Rai Malhotra alleging that the complainant-firm M/s Ajaya Industries, Ludhiana is doing the business of manufacturing of all kinds of oil machinery and spare parts and Ajay Parmar Harpal Singh 2013.08.07 12:18 I attest to the accuracy and integrity of this document Chandigarh Cr. Appeal No.S-889-SBA of 2000 [2] Kumar is one of its partners. The accused/respondent had been purchasing goods from the complainant from time to time through bills and on 7.2.1995, the accused made the payment of `52,406.25 in favour of the complainant-firm through cheque No.806883 dated 7.2.1995 amounting to `52,406.25 drawn on State Bank of India, Miller Ganj, Ludhiana. The complainant presented the said cheque for encashment through its bankers State Bank of India, Miller Ganj, Ludhiana, but the same was returned unpaid by the Bank with the remarks "insufficient funds". The complainant brought this to the notice of the accused, who apologized for the same and requested the complainant to present the cheque again in the Bank for encashment and assured that he would make necessary arrangements for the funds, so that the cheque is cleared. Again, the complainant presented the said cheque to his bankers for collection, but the same was again returned unpaid to the complainant by its bankers on 28.2.1995 with the remarks "insufficient funds". Thereafter, the complainant served a legal notice dated 3.3.1995 upon the accused, but the same was also returned with remarks "refused". It was alleged that the accused had thus committed offence under Section 138 of the Act and that he should be summoned, tried and punished according to law.
After appreciating preliminary evidence of the complainant, the accused was ordered to be summoned to face trial under Section 138 of the Act.
On appearance of the accused, he was served with notice Parmar Harpal Singh 2013.08.07 12:18 I attest to the accuracy and integrity of this document Chandigarh Cr. Appeal No.S-889-SBA of 2000 [3] under Section 138 of the Act, to which he pleaded not guilty and claimed trial. Consequently, the complainant was directed to produce his evidence after notice.
Complainant appeared himself as PW-1 and examined PW-2 Avtar Singh, Record Keeper-cum-Cashier, S.B.I. Gill Road, Ludhiana and closed his evidence.
At the close of complainant's evidence, the accused was examined under Section 313 Cr.P.C. and was confronted with the evidence of the complainant but he denied the correctness of the evidence and pleaded himself as innocent. He had pleaded that he was employed with M/s Goel Expellers and he had kept the cheque-book under his signatures. What drafts he had sent outside, the amount of the draft was filled in. He had further pleaded that he had not purchased any goods from the complainant. He had gone outside and in his absence, the complainant got the cheque book by breaking open the almirah and had filled the cheque in question, regarding which he came to know later on. The said cheque book is still lying with M/s Goel Expellers. When he demanded the said cheque book, then this false case was planted upon him. In defence, he examined DW-1 Sushil Kumar Sood and closed his defence evidence.
After going through the evidence and material on record, the learned trial Court vide impugned judgment observed that before filing the present complaint, notice was issued twice and registered covers Exs.P.4 and P.5 are on the file. On both the occasions, the registered covers never reached the accused/respondent. After discussing the law Parmar Harpal Singh 2013.08.07 12:18 I attest to the accuracy and integrity of this document Chandigarh Cr. Appeal No.S-889-SBA of 2000 [4] laid down by the Hon'ble Supreme Court and the High Courts, the trial Court came to the conclusion that where notice is returned undelivered, the provisions of Section 138 of the Act would not apply, hence the complaint is not proved and, therefore, acquitted the accused.
Aggrieved against this judgment, the appellant has filed this appeal.
At the time of arguments, the learned counsel for the appellant argued that the notices had been sent on correct address to the respondent/accused and he had been duly served. The notice was sent on correct address and in the statement recorded under Section 313 Cr.P.C., the respondent had stated that he is residing at Nilokheri. Therefore, learned counsel for the appellant argued that the findings recorded by learned Judicial Magistrate Ist Class, Ludhiana are incorrect and the judgment is not as per law and is liable to be set aside.
On the other hand, learned counsel for the respondent argued that no legal notice has been got served on correct address upon the respondent, therefore, he argued that the respondent has been acquitted as per law. Learned counsel for the respondent further argued that there is no evidence produced by the prosecution to show that the address given on the registered cover, on which the second notice was sent, is correct. Merely, the accused in his statement has stated that he is resident of Nilokheri will not prove the address. The registered cover has been sent to c/o M/s Gulshan Medical Hall but there is nothing on the record whether this Gulshan Medical Hall is owned by the respondent and Parmar Harpal Singh 2013.08.07 12:18 I attest to the accuracy and integrity of this document Chandigarh Cr. Appeal No.S-889-SBA of 2000 [5] whether it is a correct address. Therefore, he argued that there being no merit in the appeal, it should be dismissed.
I have gone through the evidence on record minutely and carefully and have heard learned counsel for the appellant/complainant and learned counsel for the respondent/accused.
From the evidence on record, I find that the only dispute which requires determination is whether the second notice sent by the complainant to the respondent has been sent on correct address or whether the respondent has been duly served with the mandatory notice. From the evidence on record, I find that in the statement of complainant Ajay Kumar PW-1 there is nothing that the respondent owns this Gulshan Medical Hall, Nilokheri or the address is correct one. It is a criminal case and the complainant has to prove its case by leading cogent evidence. He cannot take the benefit of any defect in the defence version. The respondent has right to keep silent during the criminal trial. In the statement recorded under Section 313 Cr.P.C. the address is given as resident of Nilokheri, Karnal. No street number, no house number has been mentioned. There is also no mention that the respondent/accused has any concern with this Gulshan Medical Hall. The address given on the registered cover/envelope Ex.P.5 is Gulshan Rai Malhotra, Sole proprietor, M/s Haryana Industries c/o M/s Gulshan Medical Hall, Opposite Civil Hospital, Nilokheri. This registered cover has been received back by the complainant. No postman has been examined to prove that the respondent has refused to receive this registered cover. Parmar Harpal Singh 2013.08.07 12:18 I attest to the accuracy and integrity of this document Chandigarh
Cr. Appeal No.S-889-SBA of 2000 [6] There is not an iota of evidence on the record to show that the legal notice has been sent on the correct address. Therefore, as the complainant failed to prove the fact that the legal notice as required under the Negotiable Instruments Act has been sent on the correct address, therefore, there is no presumption that notice has been served upon the respondent. If this is the case, then legal requirement of serving the respondent with notice has not been complied with. In cross-examination also PW-1 has admitted that on the envelope he did not write the house number or any other address of the accused.
In view of the above, the judgment dated 4.12.1998 passed by the learned Judicial Magistrate Ist Class, Ludhiana is correct and as per law. The reasoning has been given in this judgment on the basis of the law which have been fully discussed.
Learned counsel for the appellant placed reliance on the judgment of Supreme Court in C.C. Alavi Haji v. Palapetty Muhammed and another, (2007) 6 SCC 555. In this case, it is held that once the notice is sent by registered post by correctly addressing the drawer of the cheque, the service of notice is deemed to have been effected. But as already discussed, there is no evidence on the record to prove that the address was correct.
Parmar Harpal Singh 2013.08.07 12:18 I attest to the accuracy and integrity of this document Chandigarh
Cr. Appeal No.S-889-SBA of 2000 [7] I have gone through the impugned judgment, which is correct as per law. This judgment cannot be held as perverse. The Court while dismissing the complaint has given good reasoning. Therefore, the impugned judgment recorded by learned Judicial Magistrate Ist Class, Ludhiana is as per law and is upheld.
Finding no merit in the appeal, the same is dismissed. July 22, 2013. (Inderjit Singh) Judge *hsp* Parmar Harpal Singh 2013.08.07 12:18 I attest to the accuracy and integrity of this document Chandigarh