Madhya Pradesh High Court
Lakhmichand Jain vs Nitin Jain on 14 January, 2015
Author: Subhash Kakade
Bench: Subhash Kakade
1 M.Cr.C. No.2203/2010
HIGH COURT OF MADHYA PRADESH AT JABALPUR
SINGLE BENCH:
HON'BLE SHRI JUSTICE SUBHASH KAKADE
M.Cr.C. NO.2203 of 2010
APPLICANT: Lakhmichand Jain, S/o Raghunathmal Jain,
Aged about 74 years, R/o Ward No. 29,
Hanuman Chowk, Balaghat
Versus
RESPONDENT: 1. Nitin Jain, S/o Surajmal Jain, Aged about 35
years, R/o Ward No.10, Near Bus Stand,
Tahsil- Baihar, District- Balaghat
2. State of Madhya Pradesh
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Shri Pushpendra Kumar Dubey, Advocate for the applicant. Shri R.K.Kesharwani, PL for the respondent No.2/State.
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(O R D E R) (Delivered on: 14.01.2015) By means of filing the present application for leave to appeal under Section 378(iv) of the Code of Criminal Procedure, 1973, the applicant/complainant has assailed the order of acquittal passed by the learned CJM, Balaghat in Criminal Case No. 1620/2007 decided on 11.01.2010. By the judgment under challenge, learned trial judge acquitted the respondent, hereinafter referred as the accused, from the charge of offence punishable under Section 138 of Negotiable Instrument Act (for short "the Act").
To appreciate the say of the applicant/complainant, I would like to say that basic case that was placed before the trial Court in nutshell is that complainant/applicant filed a complaint under Section 138 of the Act against the accused alleging that in the month of May, 2006 accused had taken Rs.4 Lacs from the accused for advancement of 2 M.Cr.C. No.2203/2010 his business and promised him to return the same. It is alleged that after repeated demands, the accused gave a cheque of Rs.4 Lacs on 25.01.07 in favour of the applicant drawn on Central Bank of India, Balaghat duly signed by him. On 6.7.07 applicant presented the cheque to his banker for encashment. On 19.07.07 the applicant was informed by his banker that owing to variation in the numerals in the cheque, no encashment could be made and as such the said cheque was returned unpaid. It is alleged that accused deliberately had instructed his banker to stop payment. Thereafter on 13.08.07 the applicant sent a registered notice to the accused raising demand for payment of the money borrowed by him. The accused refused to accept the notice. Thereafter the aforesaid complaint was filed under Section 138 of the Act before the competent Court of jurisdiction.
Learned trial Court after appreciating the evidence on record and after following various citations has come to the conclusion of acquittal of the respondent holding that notice was not given properly as such the provisions of Section 138 of the Act are not attracted and has dismissed the complaint and acquitted the accused from the charge under Section 138 of the Act. Aggrieved thereby, this application has been filed.
Shri Pushpendra Kumar Dubey, learned counsel appearing for the applicant/complainant has taken me through the entire judgment and main grounds of challenge mentioned in the memo of application, and pointed out error that has allegedly committed at the time of recording of the findings of acquittal by the learned trial Court. He also submits that the prosecution evidence as adduced on behalf of complainant is cogent and germane to establish charge under Section 3 M.Cr.C. No.2203/2010 138 of the Act as the notice was duly served upon the accused, hence, he prays for grant of leave to appeal against the aforesaid impugned judgment of acquittal.
Learned PL appearing for the State submits that State is proforma party.
Heard learned counsel for the applicant at length, perused the impugned judgment and evidence on record carefully; the Court is of the view that the learned trial Court has not committed any error in acquitting the accused.
Once the cheque is issued by the drawer, a presumption under section 139 of the N.I. Act will follow. Presentation of the cheque in the bank is the next step.
In this case in hand, cheque (Ex.P-1) was issued on dated 25.01.2007.
As per cheque return information memo Ex.P-3, which was received with memo Ex.P-4 and also as per statement of Bank Officer, G. Ramna Rao (PW/1) it is clear that cheque Ex.P-1 was returned on dated 19.07.2007, which goes to show that the cheque Ex.P-1 was presented within stipulated period of six months.
Next most important step is that the holder of the cheque in due course is required to give a written notice to the drawer of the cheque within a period of thirty days from the date of receipt of information from the bank regarding the return of the cheque as unpaid.
Service of notice of demand is a condition precedent for filing of complaint. Notice of demand is mandatory. A notice may be sent either through counsel or directly by the payee or the holder in due course stating dishonor of cheque, demanding payment of the cheque amount 4 M.Cr.C. No.2203/2010 and intimating that non-compliance would result in initiating legal action.
The object of promulgate the Negotiable Instrument Act containing Sections 138 to 142 by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 was to promoting and inculcating faith in the efficacy of banking system and its operations and giving credibility to negotiable instruments in business transaction. In developing countries like ours importance of the banking system is need not to be required ornamental words. The introduction of these provisions was intended to create an atmosphere of faith and reliance on banking system by discouraging people from not honouring their commitments by way of payment through cheques. Section 138 of the N.I. Act was enacted to punish those unscrupulous persons who purported to discharge their liability by issuing cheques without really intending to do so. Apart from civil liability, criminal liability is sought to be imposed by the said provision on such unscrupulous drawers of cheques. Therefore, while construing the provision, the object of the legislation has to be borne in mind.
However, with a view to avert unnecessary prosecution of an honest drawer of the cheque and with a view to give an opportunity to him to make amends, the prosecution under section 138 of the N.I. Act has been made subject to certain conditions. The object of notice is to give a chance to the drawer of the cheque to rectify his omission and also to protect an honest drawer.
5 M.Cr.C. No.2203/2010
The first condition is stipulated in the proviso (b) of the section 138 of the N.I. Act is service of notice of demand which is a condition precedent for filing a complaint under Section138 of the N.I. Act. Under this clause (b) of the proviso, the holder of the chque in due course is required to give a written notice to the drawer of the cheque within a period of thirty days from the date of receipt of information from the bank regarding the return of the cheque as unpaid.
The second condition is stipulated under clause (b) of the proviso of the section 138 of the N.I. Act., the drawer of the cheque is given a period of fifteen days from the date of receipt of the notice to make the payment and only if he fails to make the payment, a complaint may be filed against him.
The object of above noted both proviso is to give an statutory protection against unnecessary prosecution of an honest drawer of the cheque and with a view to give an opportunity to him to make amends, the prosecution under section 138 of the N.I. Act. Therefore, the observance of stipulations in clause (b) and its aftermath in clause (c) being a pre-condition for invoking section 138 of the N.I. Act, giving a notice to the drawer before filing complaint under section 138 of the N.I. Act is a mandatory provision.
Drawer refused to receive notice:- Where drawer had refused to receive notice, even then complaint to be filed after expiry of 15 days from the date of receipt of notice. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the trail Court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the 6 M.Cr.C. No.2203/2010 Court that he had made payment within 15 days of receipt of summons, the complaint is liable to be rejected.
There is no bar for a person sending the notice of dishonor 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 dishonored cheque. The Section does not lay down that the notice of dishonor should be sent by Registered Post only. In several cases drawers of the cheques, to whom statutory notices of dishonor 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 by Registered Post Acknowledgment Due. Whenever a 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.
It is for the payee to perform the former process by sending the notice to the drawer at the correct address. The notice was sent at the correct address of the drawer of the cheque by registered post acknowledgment due. The returned envelope was annexed to the complaint and it thus, formed a part of the complaint which showed that the notice was sent by registered post acknowledgment due on the correct address and was returned with the endorsement that the addressee refused to take notice.
7 M.Cr.C. No.2203/2010
Learned trial Court discussed this fact of refusal on the basis of the statement of Postman Dharnu Singh (DW/2) and available documentary evidence in para 16 and 17 of the impugned judgment which reads as under:-
"16- /kjuwflag dk vkxs eq[; ijh{k.k esa dguk gS fd og fnukad 14-08-2007 dks furhu tSu ds ;gkW Mkd ckWaVus ds fy, x;k Fkk vkSj izn'kZ ih&6 dk jftLVªh fyQkQk ogh gS tks furhu tSu dks ckWaVk tkuk Fkk rFkk og furhu tSu ds crk;s gw, irs ij x;k FkkA ijUrq ogkWa ij furhu tSu ugha feyk FkkA mDr lk{kh us crk;k gS fd furhu tSu dh nqdku esa dksbZ O;fDr cSBk gqvk Fkk rc ml O;fDr ls blus iwNk fd furhu tSu dgkWa gS rc ml O;fDr us crk;k fd furhu tSu cSgj esa ugha gS ckgj x;s gq, gSa ijUrq mlus ;g ugha crk;k Fkk fd os dc vk;sxsaA /kjuwflag dk vkxs eq[; ijh{k.k esa dguk gS fd og rhljs fnu fQj x;k Fkk ijUrq ogkWa cSBs O;fDr us crk;k fd furhu tSu ugha gS dgha x, gSa vkSj cSgj ls ckgj x;s gSa rc blus ml O;fDr ls cksyk fd vki furhu tSu dh jftLVªh ys yks rc ml O;fDr us dgk fd ge ugha ysrs vki okil dj nks rc mDr lk{kh us izn'kZ ih&6 esa ;g fy[kk fd izkIrdrkZ ysus ls badkj gS izs"kd dks okilA mDr lk{kh us crk;k gS fd nksuksa ckj furhu tSu nf'kZr irs ij ugha feyk mlds i'pkr~ mlus mDr jftLVªh ykdj iksLV vkWfQl esa ns fn;k tgkWa ls ckyk?kkV dh jftLVªh] jftLVªh Ogkmpj izn'kZ Mh&6 esa ntZ djds Hkst nh xbZ ftldh Nk;kizfr izn'kZ Mh&6 lh gS ftlesa dzekWad 1 ij 90@15 ogh jftLVªh gS tks furhu tSu ds uke ls Hksth x;h FkhA 17- bl izdkj ls lk{kh /kjuwflag crkrk gS fd og jftLVªh uksfVl Mkd furhu tSu ds irs ij ckWaVus ds fy, x;k Fkk] ysfdu nksuksa ckj furhu tSu ml irs ij ugha feyk vkSj ogkWa ij ,d O;fDr cSBk Fkk ftlus crk;k Fkk fd furhu tSu cSgj ls ckgj x;k gaS] dc vk;sxk ;g ugha crk;k Fkk] blds ckn /kjuwflag us ml cSBs O;fDr dks jftLVªh ysus ds fy, dgk rks mlus badkj dj fn;k rc bl lk{kh us fyQkQs ij fy[kk fd izkIrdrkZ ysus ls badkj gS izs"kd dks okil fy[kdj jftLVªh cSgj Mkd?kj ds dkmUVj esa ns nhA"
Therefore, in above mentioned facts and circumstances, it is clear that notice was sent on correct address of the drawer and also within time as per provisions under Section 138 Proviso (b) of the N.I. 8 M.Cr.C. No.2203/2010 Act. Postman Dharnu Singh (DW/2) tried to deliver the notice on several dates and finally it was returned because the addressee being not found on given address and the person who was available on given address refused to take notice. The statutory scheme unmistakably shows that the burden is on the complainant to show the legal service of notice on the drawer. Where the notice could not be served on the addressee for one or the other reason, such as his non availability at the time of delivery, or premises remaining locked on account of his having gone elsewhere etc; it was observed that if in each such case, the law is understood to mean that there has been no service of notice. Learned trial Court rightly held in para 32 of the impugned judgment that due service of notice upon the drawer is not proved in accordance with law.
Therefore, it is apparent that though notice registry received unserved as addressee not found, but thereafter the complainant did not make concrete efforts to serve the notice on the accused, hence the complaint is not maintainable. The finding of the learned trial Court is well founded on the footing of the mandatory requirement of the provisions of Section 138(b) of the N.I. Act that the observance of stipulations in clause (b) and its aftermath in clause (c) being a pre- condition for invoking section 138 of the N.I. Act.
Learned trial Court in para 18 to 25 of impugned judgment elaborately discussed the statements of witnesses examined and documents filed by both the parties, rightly come to the conclusion that respondent lodged an FIR at Police Station, Baihar that he has lost one blank stamp of Rs.100/- and cheques Nos.384882 to 384886 of 9 M.Cr.C. No.2203/2010 his bank account at Central Bank, Baihar on 11.08.2007. Cheque No. 384884 (Ex.P/1) is subject matter of this litigation.
Accuse Nitin Kumar examined himself as defence witness No.4 and stated above fact of loss of cheques and stamp. These facts are duly proved by Head Constable Shyam Prakash (DW-3) as well as by filing documentary evidence exhibited as (Ex.D/7 to Ex.D/9).
Finding of the learned trial Court is also acceptable that the transaction is of Rs.4 Lacs but the applicant failed to file any documentary evidence that he has lent this sufficient huge amount to the accuse.
The High Court can consider any special feature in a particular case and cannot ignore the effect which the granting of leave to appeal without due discrimination may have on the principles of normal presumption of innocence of the accused in our criminal law which has been further reinforced and strengthened by the order of acquittal by the trial Court. Accordingly, unless the High Court is satisfied, considered in the light above, about some indications or error in a judgment of acquittal, the High Court may not grant leave.
The learned counsel for applicant could not point out any illegality or perversity in the impugned judgment. It is a well settled principle of law that unless the judgment of acquittal is palpably wrong and grossly unreasonable, interference in the application for leave to file appeal is not called for.
Hence, this application for grant of leave to appeal is dismissed.
(SUBHASH KAKADE) JUDGE Jk/ak