Bombay High Court
Ambazari Road vs Respondent : Kishor G. Rotey on 18 September, 2009
Author: A.P. Bhangale
Bench: A.P. Bhangale
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Criminal Appeal No. 312 of 2007
Appellant : Martand Purushottam Parse, aged about 74
years, resident of "Shirish", 16, South
Ambazari Road, Laxmi Nagar, Nagpur
versus
Respondent : Kishor G. Rotey, aged Major, occupation:
railway servant, resident of Deoli Naka, 428, Railway Colony, Deoli Road, Wardha.
Mr S.P. Deshpande, Advocate for appellant.
Mr C.N. Funde, Advocate for respondent.
Coram : A.P. Bhangale, J Dated : 18th September 2009 Judgment.
1. Appellant herein was original complainant. His complaint against the respondent (accused) was for the offence punishable under Section 138 of the Negotiable Instruments Act.
The trial ended in judgment and order of acquittal of the accused.
::: Downloaded on - 09/06/2013 15:05:56 ::: 2The appellant questions validity and legality thereof by this appeal.
2. The case of complainant is that complainant had thick friendship with the accused since more than three years prior to the complaint. Accused and his wife Kanchan who intended to purchase plot, had approached complainant as they were in need of cash in September 2003 and complainant had arranged sum of Rs. 1,09,000/- by withdrawing Rs. 1,08,750/- from his savings bank account from Bank of Baroda and his pocket money.
3. The cheque drawn on Bank of Maharashtra issued post dated by the accused was presented on 22.5.2004 in the Bank of Baroda, South Ambazari Road Branch, Laxmi Nagar, Nagpur. However, cheque was returned dishonoured on 9.6.2004 with remark "stop payment". Thus, accused having failed to repay, Demand Notice by RPAD was sent on 12.6.2004 and on 19.6.2004. The accused managed to have those registered demand notices returned and deemed to have been served with notice which were sent by RPAD as also under postal certificate on correct address of the accused.
The accused having failed to repay the amount despite demand made by notice returned with postal remarks "..........................................................................................................
........................................................................................................."
The notice sent under postal certificate on correct address was deemed to have been served on and received by the accused. The ::: Downloaded on - 09/06/2013 15:05:56 ::: 3 complaint was filed on 23.7.2004. After verification on 2.8.2004, the process was issued on 9.8.2004.
4. According to complainant, as counter-blast to the complaint filed, wife of the accused had lodged complaint about missing of cheques kept in her purse on 10.4.2004. Crime No. 446/04 at Wardha Police Station was registered on 30.12.2004.
On 14.10.2005 police reported it as "B" summary (false case).
5. Accused denied his liability in defence alleging that cheque in dispute along with other three cheques were lost by his wife and for that reason, intimation was given to the Bank to stop payment of cheque in dispute along with other cheques. The fact that cheque in dispute drawn on savings bank account no. 22433 with Bank of Maharashtra was signed by the accused is not disputed.
6. While complainant deposed in support of complaint, the accused examined himself and his wife.
7. Learned Magistrate, after considering material produced, was of the view that complainant did not prove that cheque bearing no. 199231 for Rs. 1,09,000/- dated 22.5.2004 was issued by the accused in discharge of legal liability as also that demand notice dated 10.6.2004 was not duly served upon accused and therefore, by impugned judgment, acquitted the accused of the offence under Section 138 of the Negotiable Instruments Act.
::: Downloaded on - 09/06/2013 15:05:56 ::: 48. The main argument of learned Advocate for complainant assailing impugned judgment of acquittal is that the cheque in question was issued signed by the accused towards repayment of sum of Rs. 1,09,000/- received by accused and his wife and that complainant had tendered sufficient legal evidence to prove his case. The case posed as counter-blast to the complainant's case was found and reported "B" summary - false case and attained finality as such as there was no counter evidence from the accused to substantiate his defence. Further, according to the complainant's advocate, learned Magistrate failed to appreciate the "deemed service" of demand notice in the facts and circumstances of the case.
9. Learned Advocate for respondent advanced submissions to support impugned judgment of acquittal.
10. It is contended that notice of demand was not served or received by the respondent. Further, according to learned Advocate for respondent (accused), the cheque in question was not issued in favour of complainant to discharge any liability or debt.
Wife of respondent wanted to purchase land for construction of Women's Hostel Building from one Shri Bakane. Therefore, she had taken four cheques signed by respondent mentioning amounts as under :
::: Downloaded on - 09/06/2013 15:05:56 ::: 5 Cheque No. Amount
199231 Rs 1,09,000/-
199232 Rs. 9,000/-
199233 Rs. 13,500/-
458570 Rs. 1,63,500/-
However, loan from HDFC for Rs. 3,50,000/- was sanctioned on 28.4.2003 for wife of respondent and she purchased the land in cash from Shri Bakane on 23.5.2003. Hence, said cheques were not used by her. Further, it is contended that wife of respondent-
accused lost those cheques for which she had complained to Wardha Police Station on 2.6.2004 and informed the Bank not to make payment as against those cheques. It is argued that complainant has filed complaint on the basis of two of those four cheques in the Court of Judicial Magistrate, First Class, Nagpur.
Cri. Complaint Cheque No. Amount Result
Case Number
1186/2005 458570 Rs.1,63,000/- Dismissed on
(697/04) 24.4.2006.
Filed on 14.7.04
4022/05 199231 Rs.1,09,000/- Dismissed by
(697/04) judgment and
Filed on 23.7.04. order impugned
herein.
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6
Thus, it is contended that complainant had not established legal liability under Section 138 of the Negotiable Instruments Act.
11. It is not in dispute that Criminal Appeal No. 493 of 2006 filed against acquittal in Criminal Case No. 1186 of 2005 was allowed by this Court by judgment and order dated 31.3.2009 "In the result, this Court passes the following order :
(a) Appeal is allowed.
(b) Impugned judgment and Order is set aside.
(c) The respondent is held guilty for dishonour of cheque of Rs. 1,63,500.00 (rupees one lakh sixty-three thousand five hundred only), and he shall pay the said amount of Rs. 1,63,500.00 (rupees one lakh sixty-three thousand five hundred only) to the appellant- holder of the cheque, in addition to payment of compensation of Rs. 10,000/-
(rupees ten thousand only).
(d) It is made clear that this Court refrains from awarding any sentence of imprisonment to the respondent.
(e) The respondent is given six months' period to make the said payment to the appellant. Upon failure to pay the said amount to the appellant by the respondent, the same shall be recoverable as `fine'."
::: Downloaded on - 09/06/2013 15:05:56 ::: 7Accused had raised same defence that complainant had misused cheque by inserting the name and date to try encashment from the bank of respondent.
12. Learned Advocate for the complainant contended that this Court had in detailed and reasoned judgment passed the order as above and for the same reasons, the present appeal may be allowed.
13. Regarding service of notice, learned counsel for complainant placed reliance on K. Bhaskaran v. Sankaran Vaidhyan Balan (1999) 7 SCC 510. It is contended that a drawer may dishonestly adopt all sorts of tricks to defeat the claim of holder or holder in due course to deprive an honest payee of the amount due. The trial court ought to have borne in mind statutory presumption arising in the case since it was admitted that the drawer had signed cheque in question. The presumption that the cheque was drawn for consideration on the date which the cheque bears and the holder received it for discharge of any debt or liability was not rebutted by the accused.
13. Reference is also made to the ruling in Harcharan Singh v. Shiv Rani (AIR 1981 SC 1224) to argue that presumption under Section 114 of the Evidence Actread with Section 27 of the General Clauses Act arose and knowledge of the contents of demand notice were imputable to the accused since he did not ::: Downloaded on - 09/06/2013 15:05:56 ::: 8 rebut those presumptions in the facts and circumstances of the case.
14. Looking into submissions at the bar in the light of relevant legal provisions, it seems that trial Court did notice the fact that cheque in question was signed by the drawer (accused) drawn on account No. 22433 with Bank of Maharashtra, Wardha Branch and that there is presumption in favour of the complainant in view of Section 139 of the Negotiable Instruments Act. But it appears to have misled itself by the alleged transaction of sale deed (exhibit 69) entered into by wife of the accused with Mr Bakane and on the ground that no acknowledgment was obtained from the accused regarding receipt of cheque or that persons who were allegedly present when cheque was handed over were not examined. The logic of the trial Court as to why the complainant did not issue cheque in favour of accused instead of withdrawing the amount and paying cash to the accused also appears absurd.
While scrutinising evidence, the trial Court observed in paragraph 26, "I find that there is reason to create doubt about trustworthiness of the accused and his wife, but it does not mean for the purpose of this case that their evidence should be discarded in toto". The observation indicating that presumptions statutorily available to the complainant were not rebutted by satisfactory evidence.
::: Downloaded on - 09/06/2013 15:05:56 ::: 915. Abstract of document (Exh.69) sought to be relied upon by the accused as evidence to establish sale transaction between Kanchan (wife of accused ) and Shri Bhaurao Bakane appears showing blanks in respect of material particulars, such as, stamp duty paid, date of presenting document, time, receipt number and date, consideration, date of executing registration fees etc. could not be ignored.
16. The fact that amount of Rs.1,08,750/- was withdrawn by complainant from his account could not be ignored. It was not necessary for the complainant to issue cheque to the accused. It is not proper to doubt the version of the complainant merely because he chose to advance hand-loan by cash. The trial Court unreasonably expected the complainant to examine eye witnesses to the hand-loan when it was not essential because there was documentary evidence in favour of the complainant which was not rebutted by the accused by sufficient satisfactory evidence. This was ignored by the learned Magistrate while appreciating sworn testimony of the complainant. Once the cheque issued by the accused under his signature was dishonoured by non-payment and after the accused having played tricks to unclaim the notice sent by RPAD on correct address of the accused, the accused could not escape from penal consequences u/s 138 of the N.I.Act. Section 138 of the N.I.Act ::: Downloaded on - 09/06/2013 15:05:56 ::: 10 aims at punishing unscrupulous drawers of cheques who though purport to discharge their liability by issuing cheque, have no real intention to pay. Failure to pay after demand notice sent and deemed to have been served on correct address, a trickster drawer can not escape from legal consequences of Sec.138 of the N.I.Act, in view of presumptions u/s 114 of the Evidence Act and Sec. 27 of the General Clauses Act particularly when drawer manages to get a false endorsement "addressee not found" etc., the Court may presume existence of 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 facts of the case. Sec. 27 of the General Clauses Act gives rise to presumption that service of notice is effected when it is sent on correct address by registered post on the address of the drawer. It is not necessary for the complainant to aver in the complaint that service of notice was evaded by the accused. When notice was sent by registered post on correct address of the drawer of the cheque and returned with endorsement such as "unclaimed" ; "addressee not found", the requirements of Sec.138 of N.I.Act regarding service of demand notice stands sufficiently complied with.
17. On careful scrutiny of evidence led in the case, I find the requirements of Sec. 138 of the N.I. Act have sufficiently ::: Downloaded on - 09/06/2013 15:05:56 ::: 11 proved in order to reverse the impugned judgment and order of acquittal passed in favour of the accused. I find him guilty of offence punishable under section 138 of the N.I.Act and convict him thereunder.
18. On the question of sentence, it is not necessary to insist upon incarceration of the accused having regard to nature of offence. The accused is sentenced to undergo imprisonment till rising of the Court and to pay compensation in the sum of Rs.
1,09,000/-, the amount covered by the cheque in question; under section 357(3) of Cr.P.C. to complainant, within two months from the date of this judgment. In default of payment of the compensation, the accused shall undergo simple imprisonment for three months. The accused shall appear before the learned Judicial Magistrate, First Class (Special Court u/s 138 of the N.I. Act) Nagpur and his surety to produce him on 16. 11.2009 and the learned Magistrate shall execute sentence, as directed.
Compensation, if not paid, shall be recovered as fine.
A.P. BHANGALE, J hsj ::: Downloaded on - 09/06/2013 15:05:56 :::