Jharkhand High Court
Abhishek Srivastva Age About 35 Years vs The State Of Jharkhand on 15 October, 2024
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 281 of 2024
Abhishek Srivastva Age about 35 years,
S/o Late Narendra Nath Srivastva,
Resident of Kawali road, Haldipokhar,
P.O. & P.S.- Kowali, Dist- East Singhbhum, Jharkhand
... ... Petitioner
Versus
1. The State of Jharkhand
2. Manoj Kumar Gupta, aged about 50 years, S/O- late dasrath
Prasad Gupta, Resident of Near Sontoshi Mandir, New
Colony, Nimdih, P.O. & P.S.- Chaibasa, Dist.- East
Singhbhum, Jharkhand. ... Opp. Parties
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Mahesh Tewari, Advocate
: Mr. Ashok Kumar Sinha (4),
Advocate
For the State : Ms. Mohua Palit, APP
For the O.P. No. 2 : Mr. Rajendra Pd. Gupta, Advocate
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08/15.10.2024 Heard the learned counsel for the parties.
2. This criminal revision petition has been filed against the judgment dated 13.12.2023 passed by learned Sessions Judge, Chaibasa, whereby the Criminal Appeal No. 92 of 2023 has been dismissed.
3. The petitioner has been convicted vide judgment of conviction and order of sentence dated 21.07.2023 passed by learned Judicial Magistrate, 1st Class, Chaibasa, West Singhbhum in Complaint Case No. 235 of 2020 for offence under Section 138 of the Negotiable Instruments Act. The cheque involved in the present case is for an amount of Rs. 15 lakhs and the petitioner has been sentenced to undergo Simple Imprisonment of 1 year and 6 months and fine amount of Rs. 20 lakhs with default sentence and there is also a direction that if the compensation is not paid within time, it shall be recoverable under the provisions of Section 421 of Cr. P.C. Submission on behalf of the parties.
4. The sole point argued on behalf of the petitioner is that the learned Courts have wrongly recorded finding with regard to service of notice arising out of bouncing of cheque. He submits that the findings recorded by the learned Courts are perverse and call for interference.
5. Learned counsel appearing on behalf of the Opposite Party No.2 has submitted that the notices were sent at two addresses; one at residential address and other at shop address. The notice sent at shop address returned unserved by endorsement "addressee left", but so far as the notice sent to the residential address is concerned, it was duly served.
6. Learned counsel for the petitioner, in response, has submitted that the Exhibit- X and X/1 were marked only for identification and those documents could not have been taken into consideration to hold that the notice was duly served upon the petitioner and the learned Trial Court had rightly observed that the speed post tracking report has no evidentiary value in the eyes of law, yet the judgment was pronounced by the Trial Court holding the petitioner guilty.
7. Except the aforesaid point regarding service of notice, no other point has been argued by the learned counsel for the petitioner. Findings of this Court
8. As per the prosecution case, the accused-petitioner had approached the complainant for a friendly loan of Rs. 15 lakhs to meet extreme financial emergency and a friendly loan was extended and the accused agreed to return the same at the earliest. However, he did not return the money in spite of repeated request and at last, he handed over a cheque dated 06.10.2020 for an amount of Rs. 15 lakhs in favour of the complainant which upon presentation bounced vide memo dated 07.10.2020 for the reasons "Account blocked."
9. The complaint case was filed disclosing the address of the petitioner as under: -
"Sri Abhishek Srivastva, son of Narendra Nath Srivastva, At present having carrying on business as "Neha Electronics" Raj Kumari Apartment, Goushala Nala Road, Jugsalai, P.S. Jugsalai, P.S. Jugsalai, District Singhbhum East 831006 Having his permanent residence at Village Harinathpur, P.S. Mohania, District Kaimur (Bhabhua) 821109."
10. The complainant was the sole witness and he exhibited the following documents: -
2 Sr. Exhibit Description
No. Number
1. P-1/PW1 Original Cheque bearing No. 000020
dated 06.10.2020 of Bank of India
Chaibasa branch for Rs. 15,00,000/-
2. P-2/PW 1 Original Cheque return memo of HDFC
Bank Chaibasa branch dated 07.10.2020
3. P-3/PW1 Original Legal notice dated 02.11.2020
4. P-4/PW1 Original Postal receipt no.
EJ198557969IN
5. P-4/PW1 Original Postal receipt no.
EJ198557972IN
6. P-5/PW1 Envelope showing 'addressee left'
7. P-6/D W 1 Writing on the photocopy of the PAN
Card of the accused
8. P-7/DW1 Writing on the photocopy of the Voter ID
of the accused
9. Mark X for Tracking report dated 02.11.2020
identification showing insufficient address
10. Mark X/1 for Tracking report dated 02.11.2020
identification
11. Mark X/2 for Photocopy of Voter ID
identification
12. Mark X/3 for Photocopy of PAN Card
identification
13. Mark X/4 for Photocopy of PAN Card of accused
identification
14. Mark X/5 for Photocopy of Voter ID Card of accused
identification
11. The complainant who was examined as P.W.-1 has fully supported his case with regard to issuance of cheque by the petitioner, its bouncing, service of demand notice and cause of action to file the case under Section 138 of the Act of 1881. The specific case of the complainant is that the accused-petitioner had issued the cheque with malafide intent and blocked the account. After bouncing of the cheque, demand notice through lawyer was issued both on 02.11.2020 at the residential address as well as office address of the accused under pre-paid speed postal receipt and the notice of residential address was sent to the permanent residential address of the petitioner at village Harinathpur. With regard to service of notice, the complainant stated that the notice was delivered to the petitioner on 07.11.2020 at his permanent residential address at Village-
3Harinathpur. In support of which the complainant relied upon the tracking report downloaded through internet. He also stated that the notice was also sent to 'Neha Electronics' of the petitioner at Jugsalai which was returned with endorsement "addressee left". He identified the original copy of lawyers notice at Exhibit P-3; two postal receipts dated 02.11.2020 as Exhibit P-4 and P-4/1; the returned notice which was sent at the address of 'Neha Electronics' at Jugsalai as Exhibit P- 5 with endorsement "addressee left"; E-tracking report was marked as 'X' (with objection) for identification showing legal notice dated 02.11.2020 sent to the accused which was received by the accused and another E-tracking report was marked as X/1 (with objection) for identification showing the legal notice dated 02.11.2020 sent which was returned as "addressee left". The complainant also exhibited the photocopy of Voter ID and PAN Card of the accused marked as Exhibit X/2 and X/3 (with objection) for identification. He identified the photocopy of PAN Card of accused marked X/4 for identification and further identified photocopy of Voter ID of accused marked X/5 for identification. He identified the accused present in the Court. The specific oral evidence with regards to dispatch and receipt of notice to the accused is at paragraph 10 of the evidence on affidavit of the complainant which was supported by speed post receipt (Exhibit- P-4 and P-4/1); returned envelope relating to notice sent to 'Neha Electronics' of the petitioner at Jugsalai with endorsement "addressee left"; tracking reports of the speed post were marked X and X/1 for identification. Paragraph 10 of the evidence on affidavit is quoted as under: -
"10. That said notice was dispatched on 02.11.2020 under prepaid speed postal receipt on the residential address as well as official address of the accused and same was delivered to the accused on 07.11.2020 at his permanent residential address at village Harinathpur as per service report generated from net-tracking of the said notice. The notice sent to his business concern at Neha Electronics, at Jugsalai, was returned with endorsement "addressee left."4
12. The complainant was duly cross examined by the defence and during cross-examination, he has stated that the complainant had business relationship with the accused for the last 10 years. It is important to note that a question in this regard was put to the accused under section 313 of Cr.P.C. also as question no 2 and the accused admitted that there was business relation between the accused and the complainant for the last 10 years. During cross-examination, the complainant has stated that the cheque was issued in return of the due amount and there was accounting in writing which the accused had taken while giving the cheque and that the complainant had not shown the amount paid to the accused in his income tax return. He has also stated in his cross-examination that the cheque was filled up in writing of the accused.
13. The complainant in his cross-examination has also stated that and that the complainant had gone to the village home of the accused on the occasion of marriage. The complainant had further stated in paragraph 45 of his cross examination that he had issued legal notice at the residential address of the accused at village home of the accused which was provided by the accused to the complainant in writing, but such written document was not produced in the court. He has further stated that he had no idea as to who had received the notice at the village.
14. The complainant has also stated in his cross examination that the legal notice was also sent to the accused at his address at Jugsalai Jamshedpur and the envelope returned with endorsement "addressee left". Complainant had also stated that he visited the mobile shop of the accused at Jugsalai and the complainant did not know that the accused had a house in Jugsalai. It is important to note that the accused who was examined as D.W.-1 has admitted in his cross- examination that he was running a shop in the name of 'Neha Electronics', but the shop was situated at Haldipokhar and not at Jugsalai and was never situated at Jugsalai and he could produce documents in support of such plea, but admittedly no document was produced by the accused to substantiate such a plea though he claimed to be in possession of documentary evidence. Thus, the 5 accused has not substantiated that since when he was running the shop namely 'Neha Electronics' at Haldipokhar and the fact remains that the notice addressed to 'Neha Electronics' at Jugsalai returned unserved with endorsement "addressee left" and not with endorsement of 'wrong address' or 'incomplete address'. The complainant has also stated in his cross examination that apart from the two addresses where the notices were sent, he had no idea about any other address of the accused. Thus, as per the materials on record, the complainant sent demand notice through speed post at two addresses known to him, one sent to 'Neha Electronics' at Jugsalai which returned unserved with a note "addressee left" and the other sent to the village home address of the accused which as per tracking report was served, but the complainant did not know as to who was the person who had physically received the notice in the village home of the accused and he claimed service of the notice on the basis of tracking report of the speed post and admittedly the notice did not return unserved.
15. The accused was examined under Section 313 of the Cr.P.C. In response to question no. 3 the accused denied having taken friendly loan from the complainant and stated that rather complainant had demanded the said cheque in the name of business and has misused it. In response to question no. 4 by which the accused was asked that he had issued the cheque under his signature for the repayment of friendly loan, the accused answered in affirmative and asserted that he had put his signature on the cheque. In response to question no. 5, the accused accepted that he had issued the said cheque from his personal account no. 451010110014811 of Bank of India. Chaibasa branch putting his signature. In response to question no.6, the accused denied receipt of any legal notice demanding the cheque amount. Thus, issuance of cheque by the accused is not in dispute and what is under dispute is receipt of the legal notice upon bouncing of cheque which as per the prosecution was served upon the accused at his permanent residential address at village home as per the tracking report of the speed post.
16. The learned Trial Court held that in totality, the accused has 6 neither produced any concrete documentary evidence, nor produced any oral evidence in support of his case and thereby the defence has not been able to prove its case.
17. The accused led three defence witnesses and examined himself as D.W-1. He has categorically denied the service of demand notice and stated that apart from address given in his evidence, he does not have any other address. He has also stated that he has filed a case against the complainant regarding misuse of cheque and he denied having given his address in writing to the complainant. However, the accused (D.W-1) in his cross-examination, has admitted that his village home is in Harinathpur, District Kaimur, the place where the legal notice was sent by the complainant to the accused which the complainant claimed to have been served as per tracking report. The accused has further admitted that in his village home, his cousin brothers are living with whom the accused is in talking terms. He has stated that he did not receive any message from the bank regarding bouncing of cheque. He has further admitted that he used to run the shop as 'Neha Electronics' but stated that his shop was never situated at Jugsalai but was at Haldipokhar. He has admitted that he had given the cheque to the complainant in the month of July 2017, but stated that he had given the cheque so that he could show it during the course of his business and that the complainant had stated that he would return the cheque in two days' time. He has admitted during cross-examination that merely by showing cheque, no business can be procured. During his cross examination the accused has also stated that he has filed a case against the complainant on 21.12.2020 in which cognizance has been taken under Sections 323/504/506 of the Indian Penal Code which was in relation to the incident of September, 2020. He has referred to his Voter Identity Card wherein his address has been mentioned as Station Road, Jugsalai, East Singhbhum. He has also accepted the photocopy of the PAN Card and has stated that the writings on the PAN Card is in his own handwriting. He has stated that he came to know through his Advocate that the case was instituted for bouncing of cheque and he came to know through his advocate only that the cheque was for an 7 amount of Rs. 15 lakhs and thereafter the accused filed a case against the complainant that he has been cheated by the complainant. At the same time, the accused has stated in his cross examination itself that he had himself filled up the cheque of Rs. 15 lakhs and handed it over to the complainant in the month of July, 2017 and thus it was not the case of the accused even in his cross examination that the accused had issued a blank cheque or that the accused had not issued the cheque to the complainant. Even in the statement recorded under Section 313 of Cr.P.C., the issuance of cheque to the complainant is not in dispute. The accused has stated in his cross examination that prior to December, 2020, he had no idea that he has been cheated by the complainant. He has admitted that he was engaged in business of mobile and the complainant had a jewellery shop. However, he has stated in his cross examination that he had no business relationship with the complainant also. In his statement recorded under section 313 of Cr.P.C., the accused has admitted that he had business relation with the complainant since last 10 years. The two other witnesses produced by the accused have supported the case of the accused. D.W-2 is the brother of the accused and he has stated that the entire family was living in Haldipokhar since long and there is no business address and that the accused had not received any demand notice. However, in his cross examination he has stated that they never resided at Station Road, Jugsalai and he has no knowledge as to the address mentioned by the accused in his voter ID. The D.W-3 claims to have known both the parties since 2016-2017 and he met the complainant in connection with business of the accused. He has stated that cheque was issued by the accused to the complainant with a promise to return the cheque so that the complainant could use the cheque by showing to others for business purposes. He has stated that when the accused asked the complainant to return the cheque, the complainant said that he would search and return the cheque and later on, he got the cheque bounced and filed the case. He has also been fully cross examined and he has, interalia, stated in his cross examination that he has no idea as to transactions between the parties and how much was due to each other. He has also stated in his cross 8 examination that the cheque cannot be utilised for taking any advantage from Mahajan by just showing the cheque.
18. The learned Trial Court discussed the evidence of the witnesses at paragraph-10 and observed at paragraph-11 that both the Exhibits of e-tracking report do not have any evidentiary value and thus, the same cannot be taken into account. The learned Trial court also considered the evidence of the defence and recorded in paragraph-12 of the judgement that the evidence of the accused (D.W-1) was contradictory in many aspects and after considering the statement of the accused under Section 313 of Cr.P.C. in paragraph 13 of the judgement, held that in totality, the accused neither produced any concrete documentary evidence, nor produced any oral evidence in support of his case and thereby the defence has not been able to prove its case. Further findings based on the arguments of the parties have been recorded in paragraph-14 onwards in the trial court's judgement and the learned trial Court ultimately recorded a finding that there was valid cause of action to file a case under Section 138 of the Negotiable Instruments Act after recording that the accused did not pay the amount to the complainant in spite of service of legal notice.
19. This Court finds that though the learned Trial Court observed that both the Exhibits relating to tracking the service of speed post notices sent to the accused do not have any evidentiary value, still the learned trial court convicted the accused by holding that the notice was served upon the accused and that the accused did not pay the cheque amount even after service of notice.
20. This Court finds that the cross-examination of the accused who was examined as D.W-1 reveal that he has admitted that his village home is in Harinathpur, District Kaimur and he has also stated that in his village home, his cousin brothers are living with whom he is in talking terms. Meaning thereby that the accused has also admitted that his village home is in Harinathpur and the address of the accused has also been mentioned in the complainant petition at village Harinathpur where the notice regarding bouncing of cheque was also sent and is asserted by the complainant that the accused had received 9 the notice regarding bouncing of the cheque. It is nobody's case that the notice sent at the address at village Harinathpur was returned unserved. Rather it is the case of the complainant that the notice was served as per tracking report and it is the case of the accused that in his village home at Harinathpur his cousin brothers are residing and the accused was in talking terms with them. Thus, the evidences on record reveal that the accused has his village home at Harinathpur and the notice regarding bouncing of cheque was sent through speed post at the address of village home of the accused at Harinathpur and certainly the notice did not return unserved. The fact also remains that the notice in the complaint case were also issued at the address given in the complaint petition and the accused appeared before the court upon receipt of notice and took bail. Under the aforesaid circumstances the fact that notice was sent at the village home address of the accused has been duly proved. Once the notice is found to have been sent at proper address through speed post the presumption in terms of section 114 of the evidence Act and section 27 of the General Clauses Act comes into play and service of notice need not be proved by the complainant by leading cogent evidence and it is for the defence to prove through cogent evidence that the notice was not served. Further, even in cases where the notice is not served and summons are served, it is still open to the accused to pay the cheque amount upon receipt of summons and report to the concerned court that the cheque amount has been paid so that the case relating to bouncing of cheque could be closed. The aforesaid view has been taken by the Hon'ble Supreme Court in 3-Judges Bench vide judgement reported in (2007) 6 SCC 555 (C.C. Alavi Haji -versus- Palapetty Muhammed and Another). It has been held in Paragraph-10 of the said judgement that where the payee dispatches the notice by registered post with correct address of the drawer of the cheque, the principles incorporated under Section 27 of the General Clauses Act would get attracted and the requirement of clause (b) of proviso to Section 138 of the Act of 1881 would get complied and the cause of action to file the complaint case would arise upon expiry of the prescribed period in clause (c) to the proviso.
10However, this would be without prejudice to the right of the drawer to show that he had no knowledge that the notice was brought to his address. Paragraph- 8 to 10 and 13 to 15 of the aforesaid judgement are quoted as under:-
"8. Since in Bhaskaran case (1999) 7 SCC 510 the notice issued in terms of Clause (b) had been returned unclaimed and not as refused, the Court posed the question: "Will there be any significant difference between the two so far as the presumption of service is concerned?" It was observed that though Section 138 of the Act does not require that the notice should be given only by "post", yet in a case where the sender has dispatched the notice by post with correct address written on it, the principle incorporated in Section 27 of the General Clauses Act, 1897 (for short "the GC Act") could profitably be imported in such a case. It was held that in this situation service of notice is deemed to have been effected on the sendee unless he proves that it was not really served and that he was not responsible for such non-service.
9. All these aspects have been highlighted and reiterated by this Court recently in Vinod Shivappa case (2006) 6 SCC 456. Elaborately dealing with the situation 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, it would completely defeat the very purpose of the Act. It would then be very easy for an unscrupulous and dishonest drawer of a cheque to make himself scarce for some time after issuing the cheque so that the requisite statutory notice can never be served upon him and consequently, he can never be prosecuted. It was further observed that once the payee of the cheque issues notice to the drawer of the cheque, the cause of action to file a complaint arises on the expiry of the period prescribed for payment by the drawer of the cheque. If he does not file a complaint within one month of the date on which the cause of action arises under Clause (c) of the proviso to Section 138 of the Act, his complaint gets barred by time. Thus, a person who can dodge the postman for about a month or two, or a person who can get a fake endorsement made regarding his non- availability, can successfully avoid his prosecution because the payee is bound to issue notice to him within a period of 30 days from the date of receipt of information from the bank regarding the return of the cheque as unpaid. He is, therefore, bound to issue the notice, which may be returned with an endorsement that the addressee is not available on the given address. This Court held: (SCC p. 463, para 15) "15. We cannot also lose sight of the fact that the drawer may by dubious means manage to get an incorrect endorsement made on the envelope that the premises has been found locked or that the addressee was not available at the time when postman went for delivery of the letter. It may be that the address is correct and even the addressee is available but a wrong endorsement is manipulated by the addressee. In such a case, if the facts are proved, it may amount to refusal of the notice. If the complainant is able to prove that the drawer of the cheque knew about the notice and deliberately evaded service and got a false endorsement made only to defeat the process of law, the court shall presume service of notice. This, however, is a matter of evidence and proof. Thus, even in a case where the notice is returned with the endorsement that the premises has always been found locked or the addressee was not available at the time of postal delivery, it will be open to the complainant to prove at the 11 trial by evidence that the endorsement is not correct and that the addressee, namely, the drawer of the cheque, with knowledge of the notice had deliberately avoided to receive notice. Therefore, it would be premature at the stage of issuance of process, to move the High Court for quashing of the proceeding under Section 482 of the Code of Criminal Procedure. The question as to whether the service of notice has been fraudulently refused by unscrupulous means is a question of fact to be decided on the basis of evidence. In such a case the High Court ought not to exercise its jurisdiction under Section 482 of the Code of Criminal Procedure."
10. It is, thus, trite to say that where the payee dispatches the notice by registered post with correct address of the drawer of the cheque, the principle incorporated in Section 27 of the GC Act would be attracted; the requirement of Clause (b) of proviso to Section 138 of the Act stands complied with and cause of action to file a complaint arises on the expiry of the period prescribed in Clause (c) of the said proviso for payment by the drawer of the cheque. Nevertheless, it would be without prejudice to the right of the drawer to show that he had no knowledge that the notice was brought to his address.
13. According to Section 114 of the Act, read with Illustration (f) thereunder, when it appears to the court that the common course of business renders it probable that a thing would happen, the court may draw presumption that the thing would have happened, unless there are circumstances in a particular case to show that the common course of business was not followed. Thus, Section 114 enables the court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. Consequently, the court can presume that the common course of business has been followed in particular cases. When applied to communications sent by post, Section 114 enables the court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. But the presumption that is raised under Section 27 of the GC Act is a far stronger presumption. Further, while Section 114 of the Evidence Act refers to a general presumption, Section 27 refers to a specific presumption. For the sake of ready reference, Section 27 of the GC Act is extracted below:
"27. Meaning of service by post.--Where 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 the expression '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, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement "refused" or 12 "not available in the house" or "house locked" or "shop closed" or "addressee not in station", due service has to be presumed. (Vide Jagdish Singh v. Natthu Singh (1992) 1 SCC 647 and V. Raja Kumari v. P. Subbarama Naidu (2004) 8 SCC 774) It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved.
15. Insofar as the question of disclosure of necessary particulars with regard to the issue of notice in terms of proviso (b) of Section 138 of the Act, in order to enable the court to draw presumption or inference either under Section 27 of the GC Act or Section 114 of the Evidence Act, is concerned, there is no material difference between the two provisions. In our opinion, therefore, when the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of Clause (b) of proviso to Section 138 of the Act stands complied with. It is needless to emphasise that the complaint must contain basic facts regarding the mode and manner of the issuance of notice to the drawer of the cheque. It is well settled that at the time of taking cognizance of the complaint under Section 138 of the Act, the court is required to be prima facie satisfied that a case under the said section is made out and the aforenoted mandatory statutory procedural requirements have been complied with. It is then for the drawer to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the cover was incorrect or that the letter was never tendered or that the report of the postman was incorrect. In our opinion, this interpretation of the provision would effectuate the object and purpose for which proviso to Section 138 was enacted, namely, to avoid unnecessary hardship to an honest drawer of a cheque and to provide him an opportunity to make amends."
21. In the aforesaid judgement itself it has been held in Paragraph 16 and 17 that any drawer who claims that he did not receive the notice sent by post, may make payment within 15 days of receipt of summons from the court and then the complaint would be rejected. Paragraph 16 and 17 of the aforesaid judgement is quoted as under: -
"16. As noticed above, the entire purpose of requiring a notice is to give an opportunity to the drawer to pay the cheque amount within 15 days of service of notice and thereby free himself from the penal consequences of Section 138. In Vinod Shivappa (2006) 6 SCC 456, this Court observed:
"One can also conceive of cases where a well-intentioned drawer may have inadvertently missed to make necessary arrangements for reasons beyond his control, even though he genuinely intended to honour the cheque drawn by him. The law treats such lapses induced by inadvertence or negligence to be pardonable, provided the drawer after notice makes amends and pays the amount within the prescribed period. It is for this reason that Clause (c) of proviso to Section 138 provides that the section shall not apply unless the drawer of the cheque fails to make the payment within 15 days of the receipt of the said notice. To repeat, the proviso is meant to protect honest drawers whose cheques may have been dishonoured for the fault of 13 others, or who may have genuinely wanted to fulfil their promise but on account of inadvertence or negligence failed to make necessary arrangements for the payment of the cheque. The proviso is not meant to protect unscrupulous drawers who never intended to honour the cheques issued by them, it being a part of their modus operandi to cheat unsuspecting persons."
17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of criminal law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the GC Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran case [(1999) 7 SCC 510 :
1999 SCC (Cri) 1284] if the "giving of notice" in the context of Clause (b) of the proviso was the same as the "receipt of notice"
a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act."
22. In view of the aforesaid interpretation of law regarding service of notice in the matter of bouncing of cheque, this Court is of the considered view that once the notice is sent by registered post or speed post at the correct village home address of the accused and the accused did not lead any cogent and convincing evidence to show that he had no knowledge that the notice was brought to his village home address, the learned trial court has rightly convicted the accused under Section 138 of the N.I. Act irrespective of tracking report of the notice sent through speed post at the village home of the accused which admittedly was not returned unserved to the sender. The accused has stated that his cousins are residing at his village home address and the accused is also in talking terms with them. Further, the complainant had sent notice to the two addresses known to him and the notice sent to 'Neha Electronics' at Jugsalai returned unserved with endorsement "addressee left" and not that the address 14 was incomplete or the address was wrong. The accused also did not take any step to pay the cheque amount upon receipt of summons from the trial court as observed by the Hon'ble Supreme Court in the aforesaid judgement in Paragraph- 16 and 17 as quoted above and before this Court, the only argument advanced is in connection with service of demand notice and thus liability is also not in dispute before this court.
23. The Appellate Court also considered the evidences on record and has recorded that the complainant has proved the entire ingredients for offence under Section 138 of the Negotiable Instruments Act in examination-in-chief of the complainant and there was no contradiction during his cross examination. The evidence of the accused was also considered in Paragraph-11 of the Appellate Court's judgement. With regard to service of notice, the learned Appellate court recorded that the accused had stated that he had not received any demand notice from the side of the complainant, but the document marked Exhibit X/1 was well proved that the demand notice was issued through speed post on 02.11.2020 and was delivered to the accused on 07.11.2020 and further the accused surrendered in the Court and took bail and observed that if the accused did not receive any notice from the Court then how he could contact his counsel for taking bail. It was recorded that it was well proved that the petitioner was making false statement in his deposition. The finding of the learned Appellate Court is quoted as under:-
"In view of the aforesaid provision, he has to disprove the presumption as contained under aforesaid provision by adducing evidence but he has failed to adduce any such evidence. He stated only that he issued cheque to the complainant on his assurance that he will return the same within 02 days which cannot be believed and it is proved that, he has issued the said cheque to discharge his liability.
Further, he stated that, he has not received any demand notice on behalf of complainant through his counsel but as per document marked 'X/1' it is well proved that, demand notice issued through speed post on 02.11.2020 has been delivered to the accused appellant on 07.11.2020 and thereafter he has surrendered in Court and took bail. If he did not receive any notice, how he contacted to his counsel for taking bail from which it is well proved 15 that, he is making false statement in his deposition."
24. The learned Appellate Court also referred to the document marked as Exhibit X/1 and Exhibit P-4/1 to hold that it was proved that the demand notice issued through the counsel for the complainant was delivered to the accused and anything stated against the said document could not be believed. The learned Appellate Court after scrutinizing the materials on record has recorded the finding in Paragraph-14 of the impugned judgment which is as follows:-
"After scrutinizing entire evidences oral and documentary, statement of accused appellant u/s 313 of CrPC and oral argument of both sides, I find that, it has been admitted by the convict appellant that, the cheque for amounting Rs. 15,00,000/- has been issued under his own signature drawn in the name complainant and he has failed to disprove presumption of the provisions contained u/s 139 of N. 1. Act therefore, it has been presumed that, the said cheque has been drawn by him to discharge debt or liability Further, as per document marked Exhibit P-2, it is proved that, the said cheque was dishonoured on 07.10 2020 on account of "account blocked" thereafter, as per document Exhibit P-3, P-4/1 and marked 'X/1' for identification, it is proved that, demand notice on behalf of complainant through his counsel was sent to the appellant on 02.11.2020 through speed post which has been delivered to him on 07.11.2020 and after expiry of 15 days i.e. 22.11.2020 he did not pay the said amount of the cheque to the complainant then, he has filed the, instant case on 16.11.2020 within a month.
Further, demand notice issued to the appellant on same day on behalf of complainant through his counsel at another address has been returned undelivered with endorsement as "addressee left" but since he has received the demand notice at another address which is sufficient to proceed against him under Section 138 of N.I. Act."
25. The complaint petition reveals that the complaint case was filed by disclosing the same address at which the legal notice was sent. Service of notice is essentially a matter of evidence which has been considered by the learned Courts after due application of mind on the materials produced on record.
26. In the case of Ajeet Seeds Ltd. v. K. Gopala Krishnaiah, (2014) 12 SCC 685, the Hon'ble Supreme Court referred to the earlier judgement passed in the case of C.C. Alavi Haji case (supra) wherein the Hon'ble Supreme court explained the nature of 16 presumption under section 114 of the Evidence Act and also under section 27 of the General Clauses Act and how these presumptions are to be applied while considering the question of service of notice and quoted paragraph 13 of the aforesaid judgement passed in the case of C.C. Alavi Haji case (supra) wherein it was held that According to Section 114 of the Act, read with Illustration (f) thereunder, when it appears to the Court that the common course of business renders it probable that a thing would happen, the Court may draw presumption that the thing would have happened, unless there are circumstances in a particular case to show that the common course of business was not followed. Thus, Section 114 enables the Court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. But the presumption that is raised under Section 27 of the General Clauses Act is a far stronger presumption. Further, while Section 114 of the Evidence Act refers to a general presumption, Section 27 refers to a specific presumption.
27. It is thus clear that Section 114 of the Evidence Act enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. Section 27 of the GC Act gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. This court is of the view that the same principle applies even to speed post. It is not necessary to aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. Moreover, there can be no doubt that service of notice is a matter of evidence and when the notice is sent under registered cover or speed post at correct address the presumptions under section 114 of the Evidence Act and section 27 of the General Clauses act comes into play and it is for the defence to lead cogent 17 evidence to disprove such presumption.
28. This Court finds that the defence has not been able to discharge its onus and was in mere denial regarding receipt of demand notice and as recorded by the learned Trial Court, the evidence of the accused (D.W-1) is full of contradictions. One such contradiction is that the accused has stated on one hand that he came to know about filing of the case for the first time through his Advocate and also came to know about the amount involved in the cheque only through his Advocate, but the accused has himself stated in his cross examination that he had filled the cheque and handed over to the complainant. This Court finds that both the Courts have considered the materials on record and have given finding that the demand notice was duly served upon the accused and inspite of service of demand notice, the amount was not paid and consequently held that the cause of action arose to file the complaint case under section 138 of N.I. Act,1881.
29. Considering the totality of facts and circumstances of this case and in view of the concurrent judgements of conviction after having recorded that the cause of action to file the case arose when the amount was not paid inspite of service of demand notice, this Court finds no illegality of perversity with respect to the aforesaid finding calling for any interference in revisional jurisdiction. It is to place on record that except the aforesaid point regarding service of demand notice, no other point has been argued by the learned counsel for the petitioner.
30. Accordingly, this revision is dismissed.
31. Bail bond furnished by the petitioner stands cancelled.
32. Pending I.A., if any, is closed.
33. Let this order be communicated to the Court concerned through FAX/E-mail.
(Anubha Rawat Choudhary, J.) Binit 18