Rajasthan High Court - Jodhpur
Ramesh Chandra Baregama vs Ramesh Chandra Joshi on 2 January, 2012
Author: R.S. Chauhan
Bench: R.S. Chauhan
1
IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR
[Rameshchandra Baregama Vs. Rameshchandra Joshi]
S.B. CRIMINAL LEAVE TO APPEAL NO.254/2008
S.B. Criminal Leave to Appeal
No. 254/2008 filed under
Section 378(4) Cr.P.C. against
the judgment dated 17.10.2008
passed by Additional Chief
Judicial Magistrate, Kapasan
Distt. Chittorgarh in Criminal
Case No. 288/2004.
Date of Judgment: 02.1.2012
HON'BLE MR. JUSTICE R.S. CHAUHAN
Reportable Mr. Sudhir Saruparia, for the appellant. Mr. Sanjay Mathur, for the respondent.
The appellant, Mr.Rameshchandra Baregama, is aggrieved by the judgment dated 17.10.2008 passed by the Additional Chief Judicial Magistrate, Kapasan, District Chittorgarh whereby the learned Magistrate has acquitted the respondent, Mr. Rameshchandra Joshi, for offence under Section 138 of Negotiable Instruments Act ('the Act' for short).
The brief facts of the case are that according to the appellant, the respondent had borrowed Rs. 1,46,000/- from the appellant. In order to repay the 2 said loan amount, the respondent had issued a cheque, cheque No. 468769, dated 25.03.2004, drawn on State Bank of Bikaner & Jaipur, Branch Kapasan. The appellant presented the aforesaid cheque. However, the said cheque was dishonoured by the Bank. Thereafter, the appellant sent a registered notice to the respondent on 25.05.2004. But despite the lapse of fifteen days, the said loan amount was not paid by the respondent to the appellant. Therefore, the appellant filed a complaint against the respondent. The statement of the complainant was recorded under Section 200 Cr.P.C. Subsequently, the learned Magistrate took cognizance against the respondent for offence under Section 138 of the Act.
In order to buttress his case, the complainant examined himself as a witness and submitted a few documents. In defence, the respondent also examined himself as a witness. After going through the oral and documentary evidence, vide judgment dated 17.10.2008, learned Magistrate acquitted the respondent for the offence under Section 138 of the Act. Hence, this criminal leave to appeal before this Court.
Mr. Sudhir Saruparia, the learned counsel for the appellant, has vehemently contended that learned 3 Judge has failed to appreciate the evidence in proper perspective; secondly, learned Judge had erred in concluding that merely because the legal notice, sent by the appellant's lawyer, was not signed by the lawyer, therefore, a valid and the legal notice was not sent to the respondent. Relying on Section 94 of the Act, the learned counsel has contended that the purpose of a notice is merely to inform the accused of the fact that the cheque given by him has been dishonored by the bank. The said information was sent to the respondent on 25.5.2004. Hence, it is absolutely immaterial whether the said notice was signed by the counsel or not. In order to buttress this contention, the learned counsel has relied upon the case of Shri Satyanarayana Gowda Vs. B. Rangappa, [(1996 Cri. 2264 (Karnataka)].
On the other hand, Mr. Sanjay Mathur, learned counsel for the accused-respondent, has strenuously contended that Section 94 uses the words "notice" and the words "inform the party to whom it is given." According to the learned counsel, there are certain principle pre-requisites of a valid notice. The purpose of the notice is not merely to inform the recipient; the purpose is to communicate authentic information to the recipient. The authenticity of the information can be 4 confirmed only by the sender by signing the notice. In case a notice is not signed, neither the veracity, nor the authenticity can be vouched for. Therefore, it is an essential requirement of law that a notice has to be signed by the sender. Since a valid notice has not been given in the present case, the learned Magistrate was certainly justified in concluding that an essential requirement of Section 138 of the Act has not been fulfilled. Hence, the learned Magistrate was legally justified in acquitting the respondent for the offence under Section 138 of the Act. Therefore, learned counsel has supported the impugned judgment.
Heard the learned counsel for the appellant, perused the impugned judgment, and considered the case law cited at the Bar.
The purpose of the notice is to inform the recipient about the existence of certain facts and circumstances and to require him to do, or to refrain from doing certain act. The information in the said notice can neither be imaginary, nor untruthful. Thus, it is imperative that the information contained in the notice must be duly authenticated by the sender. The purpose of signing a notice is to authentic the veracity of the information contained in the notice. In 5 the absence of the signature, obviously there is neither verification, nor authentication of the contents of the notice.
Section 94 of the Act reads as under;
"Mode in which notice may be given.- Notice of dishonour may be given to a duly authorized agent of the person to whom it is required to be given, or, where he has died, to his legal representative, or, where he has been declared an insolvent, to his assignee; may be oral or written;
may, if written, be sent by post; and may be in any form; but it must inform the party to whom it is given, either in express terms or by reasonable intendment that the instrument has been dishonoured, and in what way, and that he will be held liable thereon; and it must be given within a reasonable time after dishonour, at the place of business or ( in case such party has no place of business) at the residence of the party for whom it is intended.
If the notice is duly directed and
sent by post and miscarries, such
miscarriage does not render the
notice invalid."
The essential words are "notice of
dishonour", but it must "inform the party to whom it is given" (emphasis added). The use of the word "inform" obviously means to indicate the existence of actual facts. Whether the facts are actual or not require certain authentication by the sender. Unless and until a notice is signed, the contents of the notice 6 cannot be said to be authenticated. Hence, the use of the word "inform" would have to be interpreted as meaning to convey the information about authenticated facts. Thus, even Section 94 of the Act impliedly requires that notice has to be signed. Moreover, in case a notice is not signed by the sender, the receiver has no means of knowing whether the facts mentioned in the notice are true or false, are real or imaginary. Therefore, an unsigned notice is no information in the eyes of law. Although, the learned counsel has relied the case of Shri Satyanarayana Gowda (supra), but this Court respectfully disagrees with Their Lordships of the Karnataka High Court. Their Lordship has not considered the first principles of law that notice must contain authenticated information. In case a notice were unsigned, there is no authentication of the information contained in the notice. Therefore, with due respect, this Court is of the opinion that notice sent under Section 94 read with Section 138 of the Act would have to necessarily bear the signature of the sender. In case it does not do so, the notice is invalid in the eyes of the law. Hence, the case of Shri Satyanaayana Gowda (supra) does not come to the rescue of the appellant.7
The learned Magistrate has acquitted the respondent on two grounds: firstly, that an invalid notice was sent. Therefore, an essential requirement of the Section 138 of the Act was not fulfilled. Secondly, while the cheque was issued for Account No. 11552, the complaint is with regard to Account No. 11532. According to the respondent, Account No. 11532 is not his account. Since, the learned Judge has given cogent reasons for acquitting the respondent, this Court does not find any illegality or perversity in judgment dated 17.10.2008. Hence, the criminal leave to appeal is devoid of any merit; it is, hereby, dismissed.
(R.S. CHAUHAN),J.
arti sr.21