Karnataka High Court
B Manjunatha vs Sri Sathyanarayana Mahesh on 28 March, 2024
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CRL.A No. 755 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE S RACHAIAH
CRIMINAL APPEAL NO. 755 OF 2017(A)
BETWEEN:
B. MANJUNATHA,
S/O LATE D.S. BHEEMA RAO,
AGED ABOUT 48 YEARS,
RESIDING AT:
K.R. EXTENSION,
CHINTAMANI CITY,
CHICKABALLAPUR DISTRICT - 563 125.
...APPELLANT
(BY SRI. SUILKUMAR S., ADVOCATE)
AND:
SRI SATHYANARAYANA MAHESH,
S/O VISHWANATHA GUPTA,
AGED ABOUT 52 YEARS,
RESIDING AT OPP MARUTHI STUDIO,
POLYTECHNIC ROAD, K.R. EXTENSION,
CHINTAMANI CITY,
AND ALSO AT:
MAHESH SHOPPING CENTER ,
AZAD CHOWK,
CHINTAMANI CITY - 563 125.
...RESPONDENT
(BY SRI KALYAN R., ADVOCATE) ABSENT
THIS CRL.A IS FILED U/S. 378 (4) OF CR.P.C PRAYING
TO SET ASIDE THE IMPUGNED JUDGMENT OF ACQUITTAL
DATED 17.03.2017 PASSED BY THE II ADDITIONAL DISTRICT
AND SESSIONS JUDGE, CHIKKABALLAPURA (SITTING AT
CHINTAMANI) IN CRL.A.NO. 72/2016-ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENSE P/U/S 138 OF N.I.
ACT AND ETC.,
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CRL.A No. 755 of 2017
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED ON 10.01.2024, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY, THE COURT
DELIVERED THE FOLLOWING:-
JUDGMENT
1. This appeal is filed by the appellant/complainant being aggrieved by the judgment and order of acquittal dated 17.03.2017 in Crl.A.No.72/2016 on the file of the II Additional District and Sessions Judge, Chickballapur (Sitting at Chintamani), wherein the Appellate Court set aside the judgment of conviction and order of sentence dated 10.11.2016 in C.C.No.632/2015 passed by the Principal Civil Judge & J.M.F.C., Chintamani, for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'N.I. Act').
2. The rank of the parties in the Trial Court henceforth will be considered as it is, for convenience.
Brief facts of the case:
3. The complainant and the accused were friends.
The accused approached the complainant on 04.01.2014 and requested him to pay a sum of Rs.16,75,000/- as a hand loan -3- CRL.A No. 755 of 2017 for his business, political and family necessities. The complainant advanced the said amount on 04.01.2014 considering the financial crisis of the accused. The accused had promised the complainant that he would repay the amount within two months. After two months was over, when the complainant requested the accused to repay the amount, the accused issued four cheques and asked the complainant for presentation of those cheques. On presentation of the said cheques, those four cheques were dishonoured and a case came to be registered by the complainant in C.C.No.605/2014.
Subsequently, both the complainant and the accused have settled the matter, accordingly, the accused had issued two cheques for the said amount and requested the complainant to withdraw the earlier private complaint.
4. The complainant withdrew the private complaint, which was filed against the accused in the Lok Adalat by filing a memo. The complainant having believed the version of the accused, presented two cheques which were issued as a part of the settlement for encashment. The said cheques came to be dishonoured with a shara as 'funds insufficient'. The complainant issued a legal notice on 16.04.2015 calling upon the accused to repay the amount, however, the accused did not -4- CRL.A No. 755 of 2017 reply to the said notice nor repay the amount. Therefore, a complaint came to be registered by the complainant before the Jurisdictional Magistrate.
5. The Trial Court after appreciating the oral and documentary evidence on record, opined that the accused was found guilty of the offence punishable under Section 138 of N.I. Act and recorded the conviction and sentenced him to pay a fine of Rs.17,75,000/- and in default of the same, he shall undergo simple imprisonment for two years. Being aggrieved by the same, the accused preferred an appeal before the Appellate Court. The Appellate Court has recorded the acquittal by setting aside the judgment of conviction passed by the Trial Court. Hence this appeal.
6. Heard Shri Sunilkumar.S., learned for the appellant. Shri Kalyan R., learned counsel for the respondent remained absent. However, on the previous date of hearing, learned counsel argued on behalf of the respondent and sought for exemption on the next date. Perused the records.
7. It is the submission of the learned counsel for the appellant/complainant that the findings of the Appellate Court -5- CRL.A No. 755 of 2017 in recording the acquittal are inappropriate and against the law and evidence on record. Hence, the judgment of acquittal passed by the Appellate Court is liable to be set aside.
8. It is further submitted that the case which was pending against the accused was compromised and closed on 12.11.2014 before the Lok Adalat. Ex.P5 is the affidavit executed by the accused by agreeing the said transaction. The Appellate Court while re-appreciating the evidence on record, misread Ex.P5 and opined that the second party name mentioned in Ex.P5 denotes K.V.Chalam and therefore, the complainant has failed to prove the case regarding the existence of debt or liability, which appears to be baseless and erroneous and also against to the documents on record. Since the Appellate Court misread Ex.P5, the impugned judgment is passed which is liable to be set aside.
9. It is further submitted that the complainant has proved the existence of debt beyond reasonable doubt and also produced the relevant documents along with the cheque, however, the Appellate Court failed to take note of the same and passed the impugned judgment. It is further submitted that the Appellate Court held that the accused had not received the legal notice and therefore, it is contrary to the provision -6- CRL.A No. 755 of 2017 under Section 138(b) of the N.I. Act. However, the Appellate Court failed to take note of the ratio of the judgment of the Hon'ble Supreme Court in the case of C C ALAVI HAJI V. PALAPETTY MUHAMMED AND ANOTHER1. Therefore, the findings of the Appellate Court in reversing the judgment of conviction is required to be set aside. Making such submission, learned counsel for the appellant/complainant prays to allow the appeal.
10. Learned counsel for respondent / accused remained absent when the matter was reserved for judgment. However, taking into consideration the argument advanced on the previous date, it is relevant to refer to his arguments for the purpose of disposal of the case. Even though the matter was reserved twice, the learned counsel for the appellant requested this Court on several occasions to convince regarding the law on the point. Considering his request, twice it was placed before the Bench to hear the matter further.
11. Learned counsel for the respondent vehemently justified the order of acquittal passed by the Appellate Court and submitted that the legal notice said to have been issued by 1 (2007) 6 SCC 555 -7- CRL.A No. 755 of 2017 the complainant was not served to the respondent. The signature found on the acknowledgment was not proved, therefore, the complaint was to be dismissed. Accordingly, the Appellate Court appreciated and set aside the judgment of conviction passed by the Trial Court.
12. It is further submitted that the complainant has failed to prove the financial capacity to lend such a huge amount and therefore, the Appellate Court rightly appreciated the said financial capacity and set aside the judgment of conviction. In other words, the complainant failed to prove the case beyond reasonable doubt and therefore, the Appellate Court set aside the judgment of conviction passed by the Trial Court. The findings of the Appellate Court in reversing the judgment are proper and correct and therefore, interference with the said findings may not be proper. Making such submission, learned counsel for the respondent prays to dismiss the appeal.
13. Having heard the learned counsel for the respective parties and also perused the findings of the Appellate Court in recording the acquittal, it is appropriate to mention the proposition of law before adverting to the facts of the case.
-8- CRL.A No. 755 of 201714. It is a settled principle of law that in a case where an appeal is filed against the acquittal, the Appellate Court while dealing with such appeal has to interfere with the findings only where it is noticed the perversity in recording the acquittal by the Court below. The Appellate Court is precluded in interfering in such cases as a matter of routine.
15. It is also relevant to take note of the legal proposition of law on Negotiable Instruments Act. For better understanding, it is relevant to refer to the judgment of the Hon'ble Supreme Court in the case of Kishan Rao v.
Shankargouda2, paragraph Nos.18 to 22 read thus:
"18. Section 139 of the 1881 Act provides for drawing the presumption in favour of holder. Section 139 is to the following effect:
"139. Presumption in favour of holder.-- It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability.
19. This Court in Kumar Exports v. Sharma Carpets [Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513 : (2009) 1 SCC (Civ) 629 : (2009) 1 SCC (Cri) 823] , had considered the provisions of the Negotiable Instruments Act as well the Evidence Act. Referring to 2 (2018) 8 SCC 165 -9- CRL.A No. 755 of 2017 Section 139, this Court laid down the following in paras 14, 15, 18 and 19: (SCC pp. 519-20) "14. Section 139 of the Act provides that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability.
15. Presumptions are devices by use of which the courts are enabled and entitled to pronounce on an issue notwithstanding that there is no evidence or insufficient evidence. Under the Evidence Act all presumptions must come under one or the other class of the three classes mentioned in the Act, namely, (1) "may presume"
(rebuttable), (2) "shall presume" (rebuttable), and (3) "conclusive presumptions" (irrebuttable). The term "presumption" is used to designate an inference, affirmative or disaffirmative of the existence of a fact, conveniently called the "presumed fact" drawn by a judicial tribunal, by a process of probable reasoning from some matter of fact, either judicially noticed or admitted or established by legal evidence to the satisfaction of the tribunal. Presumption literally means "taking as true without examination or proof".
18. Applying the definition of the word "proved" in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the Act, it becomes evident that in a trial under Section 138 of the Act a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. As soon as the complainant discharges the burden
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CRL.A No. 755 of 2017to prove that the instrument, say a note, was executed by the accused, the rules of presumptions under Sections 118 and 139 of the Act help him shift the burden on the accused. The presumptions will live, exist and survive and shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability. A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists.
19. The use of the phrase "until the contrary is proved" in Section 118 of the Act and use of the words "unless the contrary is proved" in Section 139 of the Act read with definitions of "may presume" and "shall presume" as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over."
20. This Court held that the accused may adduce evidence to rebut the presumption, but mere denial regarding existence of debt shall not serve any purpose. The following was held in para 20: (Sharma Carpets case [Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513 : (2009) 1 SCC (Civ) 629 : (2009) 1 SCC (Cri) 823] , SCC p. 520) "20. ... The accused may adduce direct evidence to prove that the note in question was not
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CRL.A No. 755 of 2017supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. ..."
21. In the present case, the trial court as well as the appellate court having found that cheque contained the signatures of the accused and it was given to the appellant to present in the Bank, the presumption under Section 139 was rightly raised which was not rebutted by the accused. The accused had not led any evidence to rebut the aforesaid presumption. The accused even did not come in the witness box to support his case. In the reply to the notice which was given by the appellant, the accused took the defence that the cheque was stolen by the appellant. The said defence was rejected by the trial court after considering the evidence on record with regard to which no contrary view has also been expressed by the High Court.
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CRL.A No. 755 of 201722. Another judgment which needs to be looked into is Rangappa v. Sri Mohan [Rangappa v. Sri Mohan, (2010) 11 SCC 441 : (2010) 4 SCC (Civ) 477 : (2011) 1 SCC (Cri) 184] . A three-Judge Bench of this Court had occasion to examine the presumption under Section 139 of the 1881 Act. This Court in the aforesaid case has held that in the event the accused is able to raise a probable defence which creates doubt with regard to the existence of a debt or liability, the presumption may fail. Following was laid down in paras 26 and 27: (SCC pp. 453-54) "26. In light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat [Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54 : (2008) 2 SCC (Cri) 166] , may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant.
27. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments.
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CRL.A No. 755 of 2017While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant-accused cannot be expected to discharge an unduly high standard of proof."
16. In another case in the case of Bir Singh v.
Mukesh Kumar3, paragraph Nos.18, 20 and 24 read as under:
"18. In passing the impugned judgment and order dated 21-11-2017 [Mukesh Kumar v. Bir Singh, 2017 SCC OnLine P&H 5352], the High Court misconstrued Section 139 of the Negotiable Instruments Act, which mandates that unless the contrary is proved, it is to be presumed that the holder of a cheque received the cheque of the nature referred to in Section 138, for the discharge, in whole or in part, of any debt or other liability. Needless to mention that the presumption contemplated under Section 139 of the Negotiable Instruments Act, is a rebuttable presumption. However, the onus of proving that the cheque was not in discharge 3 (2019) 4 SCC 197
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of any debt or other liability is on the accused drawer of the cheque.
20. Section 139 introduces an exception to the general rule as to the burden of proof and shifts the onus on the accused. The presumption under Section 139 of the Negotiable Instruments Act is a presumption of law, as distinguished from presumption of facts. Presumptions are rules of evidence and do not conflict with the presumption of innocence, which requires the prosecution to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law and presumptions of fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact as held in Hiten P. Dalal [Hiten P. Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16 : 2001 SCC (Cri) 960] .
24. In K.N.Beena v. Muniyappan [K.N.Beena v. Muniyappan, (2001) 8 SCC 458 : 2002 SCC (Cri) 14] , this Court held that in view of the provisions of Section 139 of the Negotiable Instruments Act read with Section 118 thereof, the Court had to presume that the cheque had been issued for discharging a debt or liability. The said presumption was rebuttable and could be rebutted by the accused by proving the contrary. But mere denial or rebuttal by the accused was not enough. The accused had to prove by cogent evidence that there was no debt or liability. This Court clearly held that the High Court had erroneously set aside the conviction, by proceeding on the basis that denials/averments in the reply of the accused were sufficient to shift the burden of proof on the complainant to prove that the cheque had been issued for discharge of a debt or a liability. This was an entirely erroneous approach. The accused had to prove
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CRL.A No. 755 of 2017in the trial by leading cogent evidence that there was no debt or liability."
17. On careful reading of the above dictums of the Hon'ble Supreme Court, it makes it clear that if the averments of the complainant fulfills the ingredients of Section 138 of the Negotiable Instruments Act, it is presumed that the holder of the cheque received the cheque of the nature referred to in Section 138 of the N.I Act, for the discharge of debt or liability either as a whole or part. The said presumption is rebuttable in nature. The accused has to lead cogent evidence to rebut the said presumption. In the present case, the accused has not issued a reply notice to the legal notice of the complainant inspite of notice having been received.
18. On perusal of the findings of the Appellate Court in recording the acquittal, it appears that the Trial Court while analyzing the evidence, recorded the conviction, however, in an appeal, the Appellate Court reversed the said judgment of conviction passed by the Trial Court by holding that Ex.P5 indicates the name of the second party as K.V.Chalam, who is the respondent in Crl.A.No.71/2016 and the complainant did not produce any documents to show that he had sold the property for a sum of Rs.20,63,000/- to substantiate his
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CRL.A No. 755 of 2017financial capacity and it is further held that the legal notice is not served to the accused.
19. Having considered the findings of the Appellate Court, it is relevant to re-appreciate the evidence on record in the context of the dictum of the Hon'ble Supreme Court stated supra. The Appellate Court while appreciating the documents on record, opined that Ex.P10 - postal receipt and Ex.P11 -
postal acknowledgment bear the signatures of the accused, however, those signatures are not tallied with the signatures found on Exs.P1 and P5. In the absence of evidence regarding service of notice, it cannot be presumed that notice is served to the accused. However, the said contention is contrary to the decision of the Hon'ble Supreme Court in the case of C C ALAVI HAJI, referred to supra. In the said judgment, paragraph Nos.13 to 17, read as under:
"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
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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
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CRL.A No. 755 of 2017deemed 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 "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 : AIR 1992 SC 1604] ; State of M.P. v. Hiralal [(1996) 7 SCC 523] and V. Raja Kumari v. P. Subbarama Naidu [(2004) 8 SCC 774 : 2005 SCC (Cri) 393] .) 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
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CRL.A No. 755 of 2017procedural 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.
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 : (2006) 3 SCC (Cri) 114] this Court observed: (SCC p. 462, para 13) "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 others, or who may have genuinely wanted to
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CRL.A No. 755 of 2017fulfil 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."
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CRL.A No. 755 of 201720. On careful reading of the dictum of the Hon'ble Supreme Court, it makes it clear that Section 27 of the General Clauses Act gives rise the presumption that service of notice has been effected when it is sent to the correct address of the accused. In view of the said presumption, it is unnecessary to further aver in the complaint that in spite of return of the notice unserved, it is deemed to have been served and further, it is held that, 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, and any drawer who claims that he did not receive the notice sent by the post, can within 15 days from the date of receipt of the summons in respect of the complaint under Section 138 of the N.I Act, make a payment of the cheque amount and submit to the Court that he had made payment or else, he has to contest the case.
21. Having regard to the law laid down by the Hon'ble Supreme Court in respect of service of notice, the contention of the accused regarding non-service of notice cannot be accepted and the accused did not produce any documents to show that he was not residing in the said address. Therefore, the findings of the Appellate Court regarding non-service of notice are
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CRL.A No. 755 of 2017contrary to the law laid down by the Hon'ble Supreme Court and it deserves to be set aside.
22. The Appellate Court further opined that the complainant has to prove the case even though the accused did not rebut the presumption by leading cogent evidence is also contrary to the principles of Section 139 of N.I. Act. It is contended by the accused that, he had borrowed a loan from the complainant around about Rs.5 lakhs to Rs.6 lakhs and issued eight cheques and also an affidavit to that effect. It is further contended that, even after clearance of the said loan, the complainant did not return the cheques. The said contention of the accused appears to be strange and not acceptable for the reason that, when the accused repaid the amount which he borrowed from the complainant, either he had to issue a notice asking to return the cheques or he should have produced some documents regarding payment having been made to the complainant. In the absence of any such documents, mere making a statement that he had cleared the loan is not sufficient to rebut the presumption. The Appellate Court failed to appreciate the evidence and law in such a manner and recorded the acquittal which is unreasonable and inappropriate.
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CRL.A No. 755 of 201723. It is needless to say that the complainant has produced the cheques which are admitted by the accused and the signatures found on those cheques have also been admitted by him. Ex.P5 which is the additional document executed by the accused clearly demonstrates regarding the liability. In spite of all this evidence, the Appellate Court reversed the judgment of conviction by assigning the reasons which are not acceptable as the reasons are contrary to the facts and law.
Therefore, the judgment and order of the Appellate Court is required to be set aside.
24. In the light of the observation made above, I am of the considered opinion that the judgment and order of the Appellate Court reversing the judgment of conviction passed by the Trial Court is erroneous and contrary to the facts and law, therefore, it is liable to be set aside.
25. Hence, I proceed to pass the following:
ORDER
i) The Criminal Appeal is allowed.
ii) The judgment and order of acquittal dated 17.03.2017 passed in Criminal Appeal No.72/2016 by the II Additional District and Sessions Judge, Chickballapur (Sitting at Chintamani), is set aside.
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CRL.A No. 755 of 2017iii) The judgment of conviction and order of sentence dated 10.11.2016 passed in C.C.No.632/2015 by the Principal Civil Judge & JMFC., Chintamani, is hereby confirmed.
iv) The respondent/accused is directed to pay the fine, as ordered by the Trial Court after the appeal period is over. If it is not paid, the Trial Court is directed to secure his presence for the purpose of execution of the sentence in accordance with law.
v) Registry is directed to send the records along with a copy of this judgment to the Trial Court for execution of sentence in accordance with law.
Sd/-
JUDGE Bss