Jharkhand High Court
Baij Nath Thakur vs State Of Jharkhand & Anr. on 15 May, 2012
Equivalent citations: 2012 ACD 1178 (JHAR), 2012 (4) AIR JHAR R 235, 2012 ACD 1178 (JHA), (2012) 4 BANKCAS 811, (2013) 1 NIJ 183
Author: H. C. Mishra
Bench: H.C. Mishra
Cr. Revision No.259 of 2007
In the matter of an application under Section 397 and 401 of the Code of
Criminal Procedure
Baij Nath Thakur ..... Petitioner
Versus
The State of Bihar & Another .... Opposite Parties
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For the Petitioners : M/s Amrita Banerjee, and Mr. A.K. Sahani
For the State : Md. Hatim, APP
For O.P. No.2 : Mr. K.P. Choudhary, Advocate
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Present
The HON'BLE Mr. JUSTICE H.C. MISHRA
C.A.V. On :3.5.2012 Delivered on:- 15.5.2012
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By Court: Heard learned counsel for the petitioner and learned counsel for the
State as also, learned counsel for the complainant O.P. No. 2.
2. This revision is directed against the Judgment dated 17.3.2007 passed by the learned Additional Sessions Judge-III, East Singhbhum, Jameshdpur, in Cr. Appeal No. 32 of 2006, whereby the appeal filed by the petitioner against his conviction and sentence for the offence under Section 138 of the Negotiable Instrument Act (hereinafter referred to as the 'N.I. Act'), by Judgment and order dated 7.2.2006 passed by Smt. Neerja Ashri, Judicial Magistrate, 1st Class, Jamshedpur in C/1 Case No.1231 of 2001/T.R. No.43 of 2006, was dismissed by the learned Appellate Court below, affirming the Judgment passed by the learned Trial Court.
3. The complainant O.P. No. 2, Dinesh Prasad Singh had filed a complaint petition in the Court of Chief Judicial Magistrate, Jamshedpur, which was registered as C-1 Case No.1231 of 2001. In the said complaint petition, it was stated that the accused petitioner had taken a friendly loan of Rs.1,54,500/- from the complainant on 30.4.2001 with the assurance to return the same back within the period of six months. The accused also gave him one post dated cheque bearing cheque No. NCCJ 3980764 dated 2.5.2001 for the same amount of Rs.1,54,500/- drawn upon Canara Bank, Tuiladungri Branch, Jamshedpur. As upon expiry of the period of six months, the loan was not refunded back to the complainant, the complainant deposited the cheque in the State Bank of India, Jugsalai Branch for encashment, but the same was dishonoured by Canara Bank, Tuiladungri Branch, Jamshedpur on 2.11.2001. The complainant informed the accused but the accused misbehaved. Thereafter, the complainant sent a legal notice to the accused on 6.11.2001, but the same was returned due to non-receipt 2 of the legal notice and as the amount was not paid back to the complainant, the complainant filed the complaint petition on 29.11.2001.
4. It appears that the complainant supported his case in the enquiry stage wherein his statement was recorded on solemn affirmation. One witness was also examined on behalf of the complainant and accordingly, the prima facie case was found against the petitioner by order-dated 4.2.2002 and process was directed to be issued against the petitioner. Upon appearance of the petitioner in the Court below, substance of accusation was explained to the petitioner on 17.5.2002 and thereafter the trial proceeded. It further appears from the record that in course of trial, five witnesses were examined on behalf of the complainant and documents were also proved including the cheque, the Bank Return Memo, the legal notice as well as the envelop of the legal notice and the ledger copy of the account of the petitioner. The statement of the accused was also recorded under Section 313 of the Cr.P.C., and it appears that no evidence was adduced by the petitioner in defence.
5. CW-1 is the complainant himself, who has proved his case and he has stated that the cheque was given to the complainant by the accused which was dated 2.5.2011, which he has proved as Ext. 1. He has also stated that he deposited the said cheque in Jugsali Branch of State Bank of India on 30.11.2001. Though he was repeatedly asked in course of his cross-examination about the date of deposit of the cheque, but he has stated that for the first time, he had deposited the cheque on 30.11.2001 and he has reiterated that he had never deposited the cheque in the bank prior to 30.11.2001. This date given by the complainant is clearly beyond the period of six months from the date of the cheque, but it appears that, it was only a slip of memory of the complainant, in as much as, the complainant has also proved the documents i.e. Bank Return Memo issued by the Canara Bank, to show that the cheque was dishonoured on 1.11.2001 itself and the same was marked as Ext. 2. The complainant has also proved the Memo issued by the State Bank of India, Jugsalai Branch on 2.11.2001 informing the complainant that the cheque had been dishonoured, which has been marked as Ext. 7. The complainant has also proved the the legal notice sent to the complainant through registered post which was marked as Ext. 3 and Ext. 4 is the legal notice which was returned back undelivered with its envelop, which has also been proved by the complainant.
6. Out of the two endorsements on the envelop Ext. 4, one endorsement is of the postal peon which shows, 'Addressee out of station' and the other endorsement shows 'Not met', hence the legal notice was returned back. It may be stated that the complainant has not stated either in his complaint petition or in his evidence anything to show that the legal notice was intentionally evaded by the accused.
7. Other witnesses examined on behalf of the complainant, including the Bank Officials, have supported the case of the complainant. CW - 5, Krishna 3 Chandra Sahay, who is an employee of the Canara Bank, has also deposed that the cheque was dishonoured due to insufficient fund and the same was returned to the State Bank of India. He has also stated that the accused had got his account closed on 31.10.2001 itself.
8. Learned counsel for the petitioner submitted that the Judgments passed by the Courts below suffered from inherent illegality, in as much as, it is admitted by the complainant in his evidence itself that the cheque dated 2.5.2001 was deposited by him in the bank on 30.11.2001, thus the cheque was deposited in the bank clearly beyond the period of six months and accordingly, there is no liability against the petitioner for the offence under Section 138 of the N.I. Act which clearly prescribes that the Section shall not apply, if the cheque is not presented in the bank within the period of six months. Learned counsel accordingly, submitted that the impugned Judgment passed by the Trial Court below, as also affirmed by the learned Appellate Court cannot be sustained in the eyes of law.
9. Learned counsel for the complainant O.P. No. 2, on the other hand, has submitted that the statement of the complainant in evidence that the cheque was deposited on 30.11.2001 is only a slip of memory, in as much as the Bank Officials examined by the complainant have clearly proved that the cheque was deposited in the bank on 1.11.2001 i.e. within the period of its validity and the same was dishonoured due to insufficient fund, as also because the account was closed by the accused. Learned counsel submitted that the complainant has successfully proved the fact that the cheque was deposited within the period of its validity and has proved the Bank Return Memo issued by the bank and has also proved by legal notice sent to the accused which was marked as Ext. 4. Learned counsel accordingly, submitted that the petitioner has been rightly convicted and sentenced by the Trial Court below for the offence under Section 138 of the N.I. Act and the learned Appellate Court below has rightly confirmed the Judgment passed by the Trial Court and the same cannot be interfered with in the revision jurisdiction.
10. However, there is yet another aspect of the matter which appears not to have been addressed either in the Judgment passed by the learned Trial Court below or by the Appellate Court below. Ext. 4, which has been proved by the complainant himself, is the envelope containing the legal notice, which was sent to the accused through registered post and which was returned back undelivered. The endorsement of the postal peon on this envelop clearly shows that it is not a case of refusal of notice by the petitioner, rather the endorsement shows that the 'Addressee out of station' and that the addressee was 'Not met'.
11. This aspect has been considered by the Supreme Court of India, whether such endorsement by the postal peon would amount to valid service of notice upon the accused or not, in D. Vinod Shivappa Vs. Nanda Belliappa, reported in (2006) (6) SCC 456, wherein it has been held as follows:-
4"14. If a notice is issued and served upon the drawer of the cheque, no controversy arises. Similarly if the notice is refused by the addressee, it may be presumed to have been served. This is also not disputed. This leaves us with the third 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. 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. There is good authority to support the proposition that once the complainant, 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 legal notice which may be returned with an endorsement that the addressee is not available on the given address.
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 5 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 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."
(Emphasis supplied).
12. Thus, from the law laid down by the Apex Court as above, it is apparent that in such cases, the complainant has to prove that the drawer of the cheque knew about the notice and he deliberately evaded service or got a false endorsement only to defeat the process of law. The service of notice on the accused shall be deemed to be valid service only if the complainant is able to prove this fact. This is the question of fact, which is to be proved by the complainant on the basis of evidence and this clearly means that if this is not proved by the complainant, the service of notice on the accused, cannot be treated as a valid service. In the present case, I find that though the complainant has stated in the complaint petition that the notice was returned due to non-receipt of the legal notice, but he has nowhere stated or proved that the accused had deliberately evaded the service of notice knowing full well about the issuance of the notice, or he got false endorsements made on the envelop in connivance with the postal peon. None of the witnesses examined by the complainant has stated anything about this fact and complainant has not even examined the postal peon to prove the fact. In that view of the matter, I am of the considered view that the complainant has not been able to prove that the notice was validly served upon the accused. Section 138 proviso (b) of the N.I. Act clearly says that nothing under the said section shall apply unless the holder of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the 6 drawer of the cheque within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. In the present case, I find that no such notice could be presumed to be given to the petitioner in view of the endorsements of the postal peon that the 'Addressee out of station' and he was 'Not met', and in absence of proving the fact by the complainant that the accused knew about the issuance of notice and he deliberately evaded the service of notice, or got false endorsements made only to defeat the process of law. I am of the considered view that this case is fully covered by the decision of the Apex Court in D. Vinod Shivappa's case (Supra) and the conviction and sentence of the petitioner cannot be maintained in the eyes of law.
13. In view of the aforementioned discussions, the Judgment of conviction and Order of sentence dated 7.2.2006 in C-I Case No.1231 of 2001/ T.R. No.43 of 2006 passed by the Trial Court below, as also the Judgment dated 17.3.2007 passed in Cr. Appeal No.32 of 2006, by the learned Additional Sessions Judge-III, East Singhbhum, Jameshdpur, are hereby, set-aside. The accused petitioner accordingly, stands discharged of the accusation and he is also discharged from the liabilities of his bail bond. Let the LCR be sent back forthwith. This application is accordingly, allowed.
(H. C. Mishra, J) Jharkhand High Court, Ranchi Dated : 15/5/2012 N.A.F.R./ R.Kumar