Jharkhand High Court
Unknown vs The State Of Jharkhand on 13 February, 2020
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
1 Acq. App. (C) (SJ) No.98 of 2019
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Acq. App. (C) (SJ) No.98 of 2019
(Against the judgment of acquittal dated 10.05.2019 passed in complaint case
no. 1198 of 2017 corresponding to T.R. Case No.290 of 2019 passed by the
learned Judicial Magistrate 1st Class, Jamshedpur)
Rajendra Prasad Singh aged about 58 years, son of late B.N. Singh resident
L6/14, Farm Area, Road no.19 P.O. and P.S.-Kadama, Jamshedpur,
District-Singhbhum East, Jharkhand ..... Appellant
Versus
1. The State of Jharkhand
2. Asha Devi wife of BaikunthJha, resident of Jojobera, Near Shiv Mandir,
P.O.-Raharagora, P.S.-Govindpur, District-Singhbhum East, Jharkhand
..... Respondents
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
.....
For the Appellant : Mr. Vikas Kumar, Advocate
For the State :Mr. S.K. Burnwal, Addl. P.P.
.....
By the Court:-
I.A. No.9669 of 2019
1. Heard learned counsel for the appellant and learned Addl. P.P. for the State.
2. This interlocutory application has been filed with a prayer for grant of special leave under Section 378 (4) of the Code of Criminal Procedure for presenting this acquittal appeal.
3. Learned counsel for the appellant submits that this appeal has been preferred against the judgment of acquittal dated 10.05.2019 passed in complaint case no. 1198 of 2017 corresponding to T.R. Case No.290 of 2019 by the learned Judicial Magistrate 1st Class, Jamshedpur.
4. The brief facts of the case is that the complainant presented a cheque issued to him by the respondent no.2 in bank which was returned by bank vide the cheque return memo dated 10.03.2017 and the demand notice was sent by registered with A/D post on 08.04.2017 but the A/D card of the notice 2 Acq. App. (C) (SJ) No.98 of 2019 has not been returned. The complaint was presented on 03.05.2017 i.e. before 45 days of issue of legal notice.
5. The learned trial court considered the fact that though it has not specifically pleaded by the complainant that the cheque return memo is a computer generated copy still there is no explanation as to why the said cheque return memo does not bear the seal and sign of the bank or any of its officers. The learned trial court further considered the fact that though it was specifically pleaded by the complainant even after receipt of the demand notice the accused- private respondent did not pay the money but in his deposition the C.W. 1 stated that he has no knowledge about the service of the demand notice upon the accused person and the fact that the complainant filed the original demand notice in the court raised serious doubt in the mind of the trial court about the service notice upon the accused-respondent no.2. The trial court also considered the fact that in the absence of any evidence in the record about the service of notice upon the accused-respondent no.2, the complaint having been filed before 45 days from the date of the notice being sent by registered A/D post, the complaint is premature hence he acquitted the accused-respondent no.2.
6. Mr. Vikas Kumar, the learned counsel for the appellant drawing attention of this Court to the judgment of Hon'ble Supreme Court in the case of V. Raja Kumari vs. R. Subbarama Naidu &Anr. reported in 2005 (1) East Cr.C. 60 (SC) (Criminal Appeal No. 887 of 1999 decided on 02/11/2004) wherein in paragraph no.13 the Hon'ble Supreme Court has held as under :-
"13. Here the notice is returned as addressee being not found and not as refused. Will there be any significant difference between the two so far as the presumption of service is concerned? In this connection a reference to Section 27 of the General Clauses Act, 1897 will be useful. The Section reads thus;
27. Meaning of the service by post-While any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression 'serve' or either of 3 Acq. App. (C) (SJ) No.98 of 2019 the expressions 'give' or 'send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, preparing and posting by registered post, a letter containing the document and unless contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
submits that even though the acknowledgement card of the demand notice has not been returned still the service of notice upon the drawer of the cheque who is the respondent no.2 deemed to have been served. Hence, it is submitted that the special leave be granted to present the appeal as the appellant has very good grounds to agitate in this acquittal appeal.
7. Mr. S.K. Burnwal, the learned Addl. P.P. on the other hand defended the impugned judgment and submits that it is a settled principle of law that in case, the acknowledgement card of the notice issued by registered A/D post has not been returned to the payee of the cheque then the complaint is to be filed at least 45 days from the date of notice be sent by registered A/D post and as in this case the appellant has miserably failed to prove the service of the demand notice upon the accused-respondent no.2 but instead the evidence in the record in the shape of filing of the original demand notice by the complainant, which should have been in the possession of the accused- respondent no.2, had it been served upon him shows, that the notice was not served upon the accused-respondent no.2, hence assuming for the sake of argument that the complainant is entitled to the presumption of service of the notice, still the complaint ought to have been filed 45 days after the notice being sent by registered post with A/D but the same having been filed prior to 45 days, of the notice being sent by registered post with A/D the learned trial court has rightly acquitted the accused-respondent no.2, as the complaint was premature, hence it is submitted that as there is no merit in this acquittal appeal 4 Acq. App. (C) (SJ) No.98 of 2019 hence the complainant-appellant ought not be accorded the special leave to present the acquittal appeal.
8. It is a settled principle of law that the period of reckoning of 15 days as required under Section 138 (c ) read with section 142 of the N.I. Act in a case where the complainant cannot bring on record any evidence as to when the notice of demand of the cheque amount was received by the accused is to start from the 30th day from the date of dispatch of the demand-cum-legal notice hence the complaint at the earliest can be filed only after 45 days from the date of dispatch of demand notice by registered post with A/D, as has been held by the Hon'ble Supreme Court of India in the case of Subodh S. Salaskar vs. Jayprakash M. Shah and Another reported in 2009 (3) SCC (Cri) 834 paragraph no. 25 of which reads as under:-
"25. The complaint petition admittedly was filed on 20-4-2001. The notice having been sent on 17-1-2001, if the presumption of service of notice within a reasonable time is raised, it should be deemed to have been served at best within a period of thirty days from the date of issuance thereof i.e. 16-2-2001. The accused was required to make payment in terms of the said notice within fifteen days thereafter i.e. on or about 2-3-2001. The complaint petition, therefore, should have been filed by 2-4-2001."
9. After going through the evidence in record, this Court is of the considered view that the learned trial court has acted in consonance with the settled principle of law and as rightly submitted by the learned Addl. P.P. the complaint ought to have been presented at least 45 days from the date of issue of demand notice and as admittedly there is no document in the record to suggest the date on which the notice has been received by the accused-respondent therefore, the learned trial court has rightly held that the complaint is premature hence, this Court is of the considered view that this is not a fit case where special leave to present this appeal under section 378(4) be granted.
5 Acq. App. (C) (SJ) No.98 of 2019
10. Accordingly this interlocutory application being without any merit is dismissed.
11. Consequently this Acquittal Appeal (C)(SJ) No.98 of 2019 is also dismissed.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 13th February, 2020 AFR/ Gunjan/-