Madhya Pradesh High Court
Suresh Prajapat vs Manoj And Anr. on 4 October, 2002
Equivalent citations: I(2004)BC14, 2003(1)MPHT165
JUDGMENT S.L. Kochar, J.
1. This revision is directed against the judgment dated 10-7-2002 rendered by the Third Addl. Sessions Judge, Ujjain in Cr. Appeal No. 53/2002 arising out of the judgment dated 8-4-2002 passed by the Judicial Magistrate First Class, Ujjain in Cr. Case No. 414/2000 thereby the learned Trial Court convicted the applicant for the offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the 'Act') and sentenced to undergo R.I. for six months and a fine of Rs. 5,000/-. In default of payment of fine to suffer additional S.I. for three months and also ordered for payment of Rs. 4,000/- as compensation to the complainant out of the fine amount of Rs. 5,000/-, after its realisation from the applicant. In the impugned judgment in appeal, the learned Lower Appellate Court has maintained the conviction and sentence as imposed by the Trial Court and also awarded additional compensation under Section 357(3) of the Code of Criminal Procedure of Rs. 64,000/-. In default of payment of this amount, ordered for further R.I. for six months. Both the sentences were ordered to run consecutively. It is pertinent to note here that the learned Lower Appellate Court in para 18 has wrongly mentioned that the Trial Court has not awarded any compensation as per provision under Section 357 of the Code of Criminal Procedure whereas the Trial Court has passed the specific order as mentioned above in para 17 of its judgment.
2. A criminal complaint of the non-applicant No. 1/Manoj before the Trial Court was that he advanced Rs. 64,000/- loan on 7-11-98 returnable with interest @ Rs. 2/- per cent per month to the applicant. To this effect, an agreement was also executed duly signed by the witnesses. For repayment of this loan-amount, the applicant issued two post-dated cheques of Rs. 40,000/-and 24,000/- dated 7-11-99 respectively. He also assured for honour of the cheques on presentation in the concerned bank. But the same were dishonoured and returned back by the bank. Therefore, the non-applicant No. 1/Manoj sent a legal notice through his Advocate dated 15-11-99 by Registered Post as well as under Certificate of Posting. It is further alleged in the complaint that the applicant deliberately avoided the service of the notice and got written a note on the envelope of registered post that the noticee had gone out of station for a long period whereas the notice sent by Postal Certificate was served upon him.
3. Since the applicant did not repay the loan-amount, therefore, the complaint was filed under Section 138 of the Act and Section 420 of the Indian Penal Code. The learned Trial Court framed the charge against the applicant only under Section 138 of the Act. The applicant denied the charge and examined himself and one witness Jaisingh. The learned Trial Court held the applicant/accused guilty of the offence under Section 138 of the Act against which, he preferred an appeal and the same has been dismissed by the impugned judgment by the Lower Appellate Court. Therefore, this revision before this Court has been filed by the applicant.
4. The contention of the learned Counsel for the applicant is that the Registered Notice [Envelop with Acknowledgment Due (Ex, P-5)] was sent by the non-applicant No. 1 and the same was returned back to him by the Postal Department with an endorsement that the noticee had gone out of station of a long period and was not available at the time of delivery, hence returned back. There was no service of statutory notice upon the applicant. He further contends that in the Registered Envelop, the address of the noticee is mentioned as Suresh son of Kanhaiyalal Prajapat 20, Neel Ganga Chouraha, Ujjain whereas in the receipt of the notice alleged to be sent Under Postal Certificate (Ex. P-6) is disclosing the address of the noticee as 'Suresh s/o Kanhaiyalal Prajapat, 23, Neel Ganga near Kavelu Karkhana, Ujjain'. He submits that no acceptable evidence has been adduced by the non-applicant/ complainant that the notice sent by the Certificate of Posting was duly served upon the applicant. He further submitted that one notice Ex. D-1 was served upon the applicant sent by the non-applicant No. 1 through his Advocate which is in regard to some different amount, i.e., Rs. 59,000/-. The non-applicant No. 1 had also sent reply to some notice sent by the applicant, i.e., Ex. D-2 and the same is nowhere disclosing the fact of service of notice within 15 days by Registered Post as well as under Postal Certificate within 15 days from the date of receipt of information about dishonour of cheque.
5. Against this, the learned Advocate for the non-applicant No. 1/ complainant submitted that in para 12 the learned Trial Court has rightly held that the notice sent Under Postal Certificate (Ex. P-6) was served upon the applicant and the learned Lower Appellate Court, in the impugned judgment paras 6 and 7, after discussing the evidence on record, has also rightly held that the notice sent by Registered Post vide Ex. P-5 could not be served upon the applicant because, he deliberately avoided service and, therefore, the same would be construed as service on the basis of the prosecution evidence and in the facts and circumstances of the case.
6. Having heard the learned Counsel for the parties and after going through the entire record, this Court is of the opinion that the non-applicant No. I/complainant has failed to establish the compliance of the mandatory provision of Section 138 of the Act, Provisos (b) and (c), regarding giving of notice in writing and its receipt. For convenience these provisions are extracted as below :--
"138. Dishonour of Cheque for insufficiency, etc. of funds in the account.-
Provided that nothing contained in this section shall apply unless--
(a) ..... (b) The payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice."
7. The learned Trial Court in para 11 discussed the evidence about sending of Registered Notice (Ex. P-5) as well as the statement of defence witness Suresh Prajapat (D.W. 1) and held that in Registered Notice the address of the applicant is mentioned as 20, Neel Ganga Chouraha, Ujjain, whereas in Ex. P-6 acknowledgment Under Postal Certificate the address of the applicant is mentioned as 23, Neel Ganga, Near Kavelu Karkhana, Ujjain. It is further considered by the Trial Court in this para that the defence witness Suresh Prajapat (D.W. 1) is resident of 1/15, Neel Ganga, Kavelu Karkhana, Ujjain. Therefore, the question of receipt of this envelop/notice (Ex. P-5) by defence witness and sending the same to the applicant, would not arise. The Trial Court has not given any weight to Registered Notice (Ex. P-5) returned back unserved to the applicant and in para 12 considered Under Postal Certificate (Ex. P-6) for service of notice, but after going through the discussion in para 12, it is difficult to understand as to how and on what basis the learned Trial Court has held that the notice sent Under Postal Certificate (Ex. P-6) was served upon the applicant.
8. In this para, the learned Trial Court has held that Suresh (D.W. 1) was known to the applicant. His father's name is not Kanhaiyalal. Therefore, it is unbelievable that he kept the aforementioned notice with him. In both the situations if D.W. 1 would have handed over the notice to the applicant or else no question would arise to produce the same in the Court. To understand the finding arrived at in para 12 by the Trial Court, this Court has perused the statement of Suresh Prajapat (D.W. 1) s/o Ramlal r/o 1/15, Neel Ganga, Kavelu Karkhana. In his complete statement (examination-in-chief and cross-examination), there is absolutely no reference of the document (Ex. P-6), i.e.t Under Postal Certificate (UPC) receipt. This witness has stated that he received the notice (Ex. P-5), i.e., envelop of Registered Post and handed over the same to the applicant. This story has been disbelieved by the learned Trial Court in para 11. Therefore, the finding arrived at by the Trial Court about service of notice sent Under Postal Certificate (Ex. P-6) is based on improper appreciation of evidence rather to say cryptic in nature.
9. In appeal, the learned Lower Appellate Court in paras 6 and 7 mainly considered the envelop of Registered Post returned back with the endorsement-
^^izkIrdrkZ yEcs le; ds fy;s ckgj x;s gSa vr% og fMfyojh ds le; ij fey ugha ikrsA vr% okilA** The Lower Appellate Court has considered that the intimation of this envelopment Registered Notice was given to the noticee on 25-11-99, 27-11-99, 29-11-99, 2-12-99 and 342-99 and thereafter returned back on 4-12-99 with the aforesaid note in Hindi. In para 7, the learned Appellate Court relying on the Supreme Court judgment reported in Madan and Co. v. WazirJaivir Chand (AIR 1989 Supreme Court 630), held that in the present case, the applicant/accused was intimated on six different dates about the notice and did not receive the same. Therefore, the applicant was having knowledge of the notice and avoided its service on him. The Lower Appellate Court on this basis, considered the service of the notice upon the applicant. This Court has perused the document Ex. P-5 envelop Registered with Acknowledgment Due and Under Postal Certificate (Ex. P-6). The Lower Appellate Court has committed an error in construing that on the aforementioned dates, the information was given about the notice to the applicant. If the Postman would have given information to the applicant, he would have served upon him and on refusal would have mentioned to have refused at the first instance. There was no need for him to mention on all six dates. These six days are showing the fact that the Postman tried to contact the noticee on the given address, but could not contact for some reason or the other. Therefore, ultimately on last occasion, i.e., on 4-12-99, after inquiry, finally deposited the envelop with Acknowledgment Due in the office with the aforesaid endorsement.
10. It would also be apposite to mention here that in the Registered Envelop, the address of the applicant/accused is mentioned 20, Neel Ganga Chouraha, Ujjain. This is not the correct address. Even according to the complainant/non-applicant No. 1, the correct address of the applicant was at that time, 23, Neel Ganga, Kavelu Karkhana Ke Paas, Ujjain. On this fact also, it could not be said that the concerned Postman had given or even left the information which may be conveyed to the applicant on a correct address. The burden was on the complainant to establish that the notice was by properly addressing, pre-paid and posting by Registered Post, a letter containing the document was sent, but this burden has not been discharged beyond all reasonable doubt which is clear from the abovementioned evidence and discussion.
11. So far as the service of notice under UPC (Ex. P-6) is concerned, this cannot be construed as service because, no Acknowledgment Due is required to be sent and no presumption can be drawn under Section 114 of the Evidence Act as well as under Section 27 of the General Clauses Act. The burden is on the complainant/non-applicant No. 1 to establish beyond reasonable doubt the compliance of mandatory provision of Section 138, Provisos (b) and (c) of the Act.
12. Clause (b) of the Proviso to Section 138 of the Act gives clear indication of giving notice "in the context is not the same as receipt of notice". Giving is the process of which receipt is the accomplishment. If the payee has despatched notice to the correct address of the drawer reasonably ahead of the expiry of the fifteen days, it can be regarded that he made the demand by giving notice within the statutory period. The language used in Section 138(c) namely, "receipt of the said notice", unambiguously points to actual receipt of notice. Where the registered notice is returned with an endorsement "addressee not found", it cannot be stated that there could have been any sort of wilful evasion of such notice. In such a case, there is no service of notice and a complaint under Section 138 cannot be maintained because on envelop (Ex. P-5), alleged to containing notice is not showing correct address of the applicant/accused which is a condition precedent.
13. His Lordship Hon. Shri Justice K.T. Thomas of Kerala High Court in the case of K. Madhu and Anr. v. Omega Pipes Limited, Frankulam and Anr. (1994 Cr.LJ 3439) has observed as under :--
"In the above context it is useful to know that in Clause (c) of the Proviso the drawer of the cheque is given fifteen days from the date "of receipt of the said notice" for making payment. This affords clear indication that "giving of notice" in the context is not the same as receipt of notice. Giving is the process of which receipt is the accomplishment. The payee has to perform the former process by sending the notice to the drawer in his correct address. If receipt or even tender of notice is indispensable for giving the notice in the context envisaged in Clause (b) an evader would successfully keep the postal article at bay at least till the period of fifteen days expires. Law shall not help the wrong doer to take advantage of the tactics. Hence the realistic interpretation for the expression "giving notice" in the present context is that, if the payee has despatched notice in the correct address of the drawer reasonably ahead of the expiry of fifteen days, it can be regarded that he made the demand by giving notice within the statutory period. Any other interpretation is likely to frustrate the purpose for providing such a notice."
14. The Madras High Court in the case of L. Mani v. Kandan Finance (1996 Vol. 86 Comp. Cases 205) has held that-
Section 138(c) of the Negotiable Instruments Act, 1881, does not contemplate constructive notice. The language used therein namely "receipt of the said notice", unambiguously points to actual receipt of notice. Where the registered notice is returned with an endorsement "addressee not found", it cannot be stated that there could have been any sort of wilful evasion of such notice. In such a case there is no service of notice and a complaint under Section 138 of the Act cannot be maintained."
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15. Learned Lower Appellate Court has failed to see that the Trial Court has granted compensation as per provision under Section 357(1) of the Code of Criminal Procedure, i.e., Rs. 4,000/- out of fine of Rs. 5,000/- therefore, incorrectly mentioned this fact in its judgment. The learned Judge of the Lower Appellate Court is directed to be more careful in future while considering the judgment and finding in appeal. The judgment and order in para 18 passed by the Lower Appellate Court granting compensation of Rs. 64,000/- under Section 357(3) of the Cr.PC and in default of payment thereof imposing R.I. for six months is also without jurisdiction. First of all for awarding compensation under Section 357(3) of the Cr.PC the sentence in default cannot be imposed because it is not a fine. Secondly, in appeal, this provision cannot be invoked in addition after maintaining the conviction and sentence awarded by the Trial Court because, there was no revision/appeal filed by the complainant for enhancement of sentence or grant of compensation.
16. In the result, this revision succeeds and is hereby allowed in terms indicated hereinabove. The conviction and sentence of the applicant are set aside. The Trial Court is directed to release the applicant forthwith, if not required in any other case. If the amount of fine is paid, the same be refunded to him.