Karnataka High Court
Sri Chikkachowdappa S/O Gopanna vs Sri S M Seetharam S/O Segumuddaiah Setty on 14 June, 2013
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
®
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 14th DAY OF JUNE 2013
BEFORE:
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL REVISION PETITION No.574 of 2008
BETWEEN:
Sri. Chikkachowdappa,
Son of Gopanna,
Aged about 69 years,
No.150, 22nd Cross,
Agara, Sector - I,
H.S.R.Layout,
Bangalore - 560 034. ...PETITIONER
(By Shri. M.G. Ramakrishnaiah, Advocate )
AND:
Sri. S.M. Seetharam,
Son of Segumuddaiah Setty,
Since deceased by his
Legal representatives
2
1. S.S. Raghu,
Son of Late S.M. Seetharam,
Aged 49 years,
2. S.S. Madhu,
Son of Late S.M. Seetharam,
Aged 44 years,
Both residing at No.477,
1st Floor, 14th Main Road,
12th Cross, Padmanabha Nagar,
Bangalore - 560 080.
...RESPONDENTS
(By Shri. S.G. Bhagavan, Advocate [absent] )
*****
This Criminal Revision Petition is filed under Section
397 and 401 Code of Criminal Procedure, 1973, praying to set
aside the judgment and conviction order dated 3.11.2005 passed
by the XVI Additional Chief Metropolitan Magistrate,
Bangalore, in C.C.No.34862 of 1999 and pleased to set aside
the judgment in confirming the same by the judgment dated
21.4.2008 passed by the Presiding Officer, Fast Track Court-II,
Bangalore, in Criminal Appeal No.1553 of 2005 and further be
pleased to dismiss the complaint filed by the respondent in
C.C.No.34862 of 1999 on the file of the XVI Additional Chief
Metropolitan Magistrate, Bangalore and direct the acquittal of
the petitioner by allowing this Criminal Revision Petition.
This petition, having been heard and reserved on
07.06.2013 and coming on for Pronouncement of Orders this
day, the Court delivered the following:-
3
ORDER
Heard the learned counsel for the petitioner. The learned Counsel for the respondent has remained absent even though the matter was adjourned several times to enable the counsel to appear and contest the case.
2. The petitioner herein was the accused on a complaint by the respondent, alleging an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (Hereinafter referred to as the 'NI Act', for brevity).
3. The facts of the case are as follows:-
It was alleged by the respondent that the petitioner had borrowed Rs.10,00,000/- and had sought to refund the same, by issuing a cheque for a sum of Rs.9,00,000/- dated 15.11.1998.
When the same was presented for encashment, the petitioner's banker is said to have returned the same with an endorsement, dated 17.11.1998, that there were insufficient funds in the account of the petitioner. A notice dated 24.11.1998 was issued 4 by the respondent through his counsel. Though the petitioner is said to have received the same, since he did not meet the demand for refund of the money covered under the cheque, a private complaint was filed under Section 200 of the Code of Criminal Procedure, 1973 (Hereinafter referred to as the 'Cr.PC', for brevity). The trial court having taken cognizance, had issued summons to the petitioner. The petitioner appeared through counsel and contested the case. The respondent had tendered evidence as PW.1 and also that of the bank manager as PW.2. The petitioner had also tendered evidence. The primary defence of the petitioner before the trial court was that the complaint for an offence punishable under Section 138 of the NI Act had been filed prematurely and therefore, there was no cause of action for the complaint and that the same ought to have been rejected. The basis for this contention was that the respondent is said to have issued notice as prescribed under Section 138 of the NI Act as on 24.11.1998. There was no indication as to the date of service of notice on the petitioner.5
Though the petitioner has replied to the notice by a reply dated 2.12.1998, the complaint having been filed on 14.12.1998, unless the respondent pleaded and established that the notice was served on a particular day and if the period was computed from that date, the complaint was maintainable, it could not be presumed that the complaint had been filed in accordance with Section 138 of the NI Act. It was also pointed out that the respondent had not tendered any evidence in this regard nor had asserted that the notice had been served on a certain day and no evidence was adduced of any such service. It was also asserted that in a last minute effort to save the day, the respondent - complainant had sought leave of the court below to tender evidence, when the matter was set down for final arguments and had produced correspondence addressed to the postal authorities, whereby the complainant had sought information as to the date on which the notice issued by registered post had been served on the petitioner. The postal authorities were unable to provide any clue. Though the 6 respondent had claimed that he had received a phone call from the petitioner's wife on 26.11.1998 to inform him that a notice had been served on the petitioner and that he would reply appropriately to the same, this did not establish the fact that the notice had been served on the petitioner on 26.11.1998. In addressing this aspect of the matter, the trial court has noticed that though the notice issued by the respondent to the petitioner was dated 24.11.1998, it had actually been despatched on 25.11.1998 and the reply of the petitioner dated 2.12.1998, was actually despatched on 5.12.1998 and received by the counsel for the respondent on 7.12.1998. Therefore, there would have been cause of action for the complaint, if the petitioner had received the notice on or before 28.11.1998. While noticing that the complainant had not indicated as to when the notice had been served on the petitioner and neither the petitioner asserting that it was duly served on him on any particular day, the trial court, in this background, has taken the view that the probable date of service of notice on the petitioner would have 7 to be addressed with reference to the admitted circumstances.
The trial court has observed that both the petitioner and the respondent were residents of Bangalore city. The reply notice sent by registered post through the counsel for the petitioner on 5.12.1998 had been received by the counsel for the respondent on 7.12.1998. This would indicate that normally, a letter sent by registered post to an address, within Bangalore city, would be served in two days and on that presumption, the trial court has proceeded to hold that if the notice sent by the respondent was on 25.11.1998 it would be reasonable to presume that it had been served on the petitioner at least on 27.11.1998. But the fact that the reply notice issued by the petitioner is dated 2.12.1998 and the same having issued through counsel, the trial court has concluded that the petitioner would be expected to have instructed his counsel well before 2.12.1998 and the preparation of the draft and approval of the same and despatch of the same by registered post would have taken some time and has concluded that it was safe to presume that notice had been 8 served well before 28.11.1998 and the complaint having been filed fifteen clear days after 28.11.1998, the complaint was filed in accordance with law.
Insofar as the further contention that the petitioner had not affixed his signature on the cheque and that it was forged is concerned, the trial court has opined that the burden of establishing that the signature was forged was cast on the petitioner and that burden has not been discharged effectively and has hence negated the same.
The further contention that the respondent had stolen the cheque in question and had sought to misuse the same, was also negated as not having been established and the petitioner was convicted and sentenced to pay a fine of Rs.15,00,000/-, of which Rs.12,00,000/- was to be paid as compensation to the respondent and Rs.3,00,000/- was made over to the State. The same having been challenged in appeal, the appellate court had confirmed the judgment of the trial court.
It is that which is under challenge in the present petition. 9
4. The learned Counsel for the petitioner highlights the very ground raised both before the trial court as well as the lower appellate court that in the absence of production of the postal acknowledgement of service of the notice issued to the petitioner under section 138 of the NI Act, preceding the filing of the complaint, the complaint having been filed on 14.12.1998 was premature as there was no indication of the date of service of the notice on the petitioner, fifteen days prior to the lodging of the complaint. The trial court having taken cognizance on the very day, that the complaint was lodged, the proceedings would have to be set at naught as there was no cause of action for the complaint. He would submit that the court below has merely presumed that the notice may have been served on or before 28.11.1998 and its finding is not on the basis of any material evidence.
It is also canvassed that the cheque in question was not issued in discharge of any legal liability and that the respondent 10 had admitted the difference in the writing on the cheque which throws a serious doubt on the genuineness of the instrument, in that, it was never issued by the petitioner and that the court has erred in not accepting the case of the petitioner that the cheque leaf had been stolen and misused by the respondent.
The learned Counsel for the petitioner has placed reliance on the following authorities in support of the case:
1. Sadanandan Bhadran vs. Madhavan Sunil Kumar, AIR 1998 SC 3043,
2. Ramanna vs. T.Jayaprakash, 1998(2) Crimes 179,
3. K.Bhaskaran vs. Sankaran Vaidhyan Balan and another, JT 1999(7) SC 558,
4. M/s Shakti Travel and Tours vs. State of Bihar and another, JT 2000(7) SC 563,
5. M/s Kumar Exports vs. M/s Sharma Carpets, AIR 2009 SC 1518, 11
6. Yogendra Pratap Singh vs. Savitri Pandey, AIR 2012 SC 2508,
7. Narsingh Das Tapadia vs. Goverdhan Das Partani, AIR 2000 SC 2946 The learned counsel would seek to contend that even if the law as laid down in Tapadia, supra is applied, it is evident that though there is no bar for a complaint to be presented before the expiry of 15 days, after receipt of notice by the drawer of the cheque, the court could not have taken cognizance before the expiry of 15 days. In the instant case on hand, the court having taken cognizance on the very day that the complaint was filed, would render the proceedings bad in law as the complaint was liable to be rejected and hence seeks that the petition be allowed and the accused be acquitted.
5. On a consideration of the several grounds urged and the material on record, the only ground, which may require to be addressed, is whether the complaint was filed prematurely 12 and therefore ought to have been rejected, as there was no cause action on the date, the complaint was filed or cognizance having been taken by the trial court of the offences alleged.
Insofar as the other grounds as regards the cheque having been stolen and misused by the respondent, or that the cheque was not issued in discharge of a debt or a legal liability, were certainly assertions, in respect of which, the burden was cast on the petitioner to prove the same from the material on record and the evidence adduced, which the courts below have rightly negated as not having been established.
However, insofar as the above referred issue as to the complaint being premature, as there is some debate on the question of law, the same is considered hereunder:-
In Sadanandan Bhadran, supra, the apex court has held that Section 138 of the NI Act, as its main part creates an offence when a cheque is returned by the bank unpaid for any of the reasons mentioned therein. The proviso to the Section 13 lays down three conditions precedent to the applicability of the Section 138 and for creation of such an offence, namely, (1) the cheque should have been presented to the bank within six months of its issue or within the period of its validity, whichever is earlier (2) the payee should have made a demand for payment by notice after the cheque is returned unpaid and (3) that the drawer should have failed to pay the amount within 15 days of the receipt of notice.
Insofar as the first contention is concerned, there is no embargo upon the payee to successively present a dishonoured cheque during the period of its validity. Though it can be presented any number of times during the period of its validity, that on presentation of the cheque and its dishonour, a fresh right, and not cause of action, accrues in his favour. The complainant may, therefore, without taking pre-emptory action in exercise of the right under clause (b) of the proviso to Section 138 go on presenting the cheque so as to enable him to exercise such right at any point of time during the validity of 14 the cheque. But, once a notice is given, under clause (b) of Section 138, the right is forfeited in case of failure of the drawer to pay the money within the stipulated time, he would be liable for the offence and the cause of action for filing a complaint will arise and the period of one month for filing the complaint would be reckoned from the day immediately following the day, on which the period of 15 days from the date of receipt of notice by the drawer expires. The learned Counsel has placed emphasis on the last portion of the observation of the apex court, as above.
In the case of Ramanna,, supra, a single judge of this court has taken a view, following Chandrappa vs. Subramanya, ILR 1985 Kar.1555, that no inference of service of notice on the addressee, much less of any definite date of service thereof could be drawn or presumed, merely on the basis of a relevant certificate of posting. The posting of a postal article on a particular date, cannot be cited as proof of the fact 15 of its actual delivery to the addressee and of the particular date on which, it was received by him.
In K.Bhaskaran, supra, the apex court has dealt at length on an issue, whether a cause of action arising for an offence punishable under Section 138 of the NI Act, when the notice sent by the complainant to the accused was returned as "un- claimed". After noticing clauses (b) and (c) of the proviso to Section 138 of the Act, the apex court has held that on the part of the payee, he has to make a demand by "giving a notice" in writing and this is not the same as "receipt of notice". Giving is a process of which receipt is the accomplishment. It is for the payee to perform the former process by sending notice to the drawer at his correct address. The Court has quoted with approval the distinction between "giving of notice" and "receiving of notice", as found in Black's Law Dictionary, namely, " A person notifies or gives notice to another by taking such steps as may be reasonably required, to inform the other in the ordinary course, whether or not such other actually comes 16 to know of it. The court has held that if the above compliance is found, it is duly delivered to him or at his place of business. The apex court has further held that if a strict interpretation is given that the drawer should have actually received the notice for the period of 15 days to start running, no matter that the payee sent the notice to the correct address, a trickster cheque drawer would get the premium to avoid receiving notice by different strategies and he can escape from the legal consequences of Section 138 of the Act. The court has laid down that the court should not adopt an interpretation which helps a dishonest evader and clips a honest payee, as that would defeat the very legislative measure and has held that the context envisaged in section 138 of the Act invites a liberal interpretation for the person, who has the statutory obligation to give notice, because he is presumed to be the loser in the transaction and it is for his interest the very provision is made by the Legislature. The tenor of clause (b) of the Proviso to Section 138, indicates that a payee has a statutory obligation 17 "to make a demand" by giving notice. The thrust in the clause is on the need to make a demand. It is only the mode for making such demand, which the Legislature has prescribed. A payee can send the notice for doing his part of giving the notice. Once it is dispatched, his part is over and the next depends on what the sendee does. It is well settled that a notice refused to be accepted by the addressee, can be presumed to have been served on him. In answering the question, whether there would be any significant difference between the two circumstances, where the notice is returned as, "unclaimed" and not "as refused", the apex Court has drawn attention to Section 27 of the General Clauses Act, 1897, which reads as follows:-
"27. Meaning of service by post. Where any central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expressions "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 18 addressing, prepaying 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."
The apex court has held that though Section 138 does not require that the notice should be given only by post. Nonetheless the principle incorporated in Section 27 could profitably be imported in a case where the sender has dispatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was responsible for such non-service. Any other interpretation can lead to a very tenuous position as the drawer of the cheque, who is liable to pay the amount would resort to the strategy of subterfuge by successfully avoiding notice. The apex court has held in that case as well that when a notice was returnable by the sendee as unclaimed, such date would be the commencing 19 date in reckoning the period of 15 days contemplated in clause
(d) of the Proviso to Section 138 of the NI Act. It would however be open to the drawer of the cheque to show that he had no knowledge that notice was brought to his address.
In Shakthi Travels and tours, supra, the apex court has held that when a complaint was filed before the expiry of 15 days from the date of service of notice, the complaint was not maintainable and had accordingly quashed the same.
In M/s Kumar Exports, supra, the apex court has considered the manner in which the presumption under section 139 can be rebutted and has expressed that the rebuttal need not be by proof of defence beyond reasonable doubt.
The apex court, in Narsingh Das Tapadia, supra, in addressing a situation where a complaint had been filed even before the expiry of 15days after the receipt of notice issued under section 138, whether the complaint ought to be rejected as being without a cause of action, has held that the complaint 20 cannot be dismissed as premature and that taking cognizance and filing of complaint are two distinct things and has laid down as follows :-
"7. The compliance of clause (c) of proviso to Section 138 enables the Court to entertain a complaint. Clause (b) of Section 142 prescribes a period within which the complaint can be filed from the date of the cause of action arising under clause
(c) of the proviso to Section 138. No period is prescribed before which the complaint cannot be filed, and if filed not disclosing the cause of action in terms of clause (c) of the proviso to Section 138, the Court may not take cognizance till the time the cause of action arises to the complainant.
8. "Taking cognizance of an offence" by the Court has to be distinguished from the filing of the complaint by the complainant. Taking cognizance would mean the action taken by the Court for initiating judicial proceedings against the offender in respect of the offence regarding which the complaint is filed. Before it can be said that any Magistrate or Court has taken cognizance of an offence it must be shown, that he has applied his mind to the facts for 21 the purpose of proceeding further in the matter at the instance of the complainant. If the Magistrate or the Court is shown to have applied the mind not for the purpose of taking action upon the complaint but for taking some other kind of action contemplated under the Code of Criminal Procedure such as ordering investigation under Section 156(3) or issuing a search warrant, he cannot be said to have taken cognizance of the offence. (Narayandas Bhagwandas Madhavdas v. State of West Bengal, AIR 1959 SC 1118: (1959 Cri LJ 1368); and Gopal Das Sindhi v. State of Assam, AIR 1961 SC 986:
(1961 (2) Cri LJ 39)].
9. This Court in Nirmaljit Singh Hoon v. The State of West Bengal (1973) 3 SCC 753: (AIR 1972 SC 2639) observed (Para 22 of AIR):
" Under Section 190 of the Code of Criminal Procedure, a Magistrate can take cognizance of an offence, either on receiving a complaint or on a police report or on information otherwise received. Where a complaint is presented before him, he can under Section 200 take cognizance of the offence made out therein and has then to examine the complaint and his witnesses. The object of such 22 examination is to ascertain whether there is a prima facie case against the person accused of the offence in the complaint, and to prevent the issue of process on a complaint which is either false or vexatious or intended only to harass such a person. Such examination is provided therefore to find out whether there is or not sufficient ground for proceeding. Under Section 202, a Magistrate, on receipt of a complaint, may postpone the issue of process and either inquire into the case himself or direct an inquiry to be made by a Magistrate subordinate to him or by a police officer for ascertaining its truth or falsehood. Under Section 203, he may dismiss the complaint; if, after taking the statement of the complainant and his witnesses and the result of the investigation, if any, under Section 202, there is in his judgment 'no sufficient ground for proceeding'."
10. Mere presentation of the complaint in the Court cannot be held to mean, that its cognizance had been taken by the Magistrate. If the complaint is found to be premature, it can await maturity or be returned to the complainant for filing later and its mere presentation at an earlier date need not necessarily render the complaint liable to be dismissed or confer any right upon the accused to 23 absolve himself from the criminal liability for the offence committed. Again this Court in D. Lakshminarayana Reddy v. V. Narayana Reddy, AIR 1976 SC 1672 : (1976 Cri LJ 1361) dealt with the issue and observed (para 14):
"What is meant by 'taking cognizance of an offence' by the Magistrate within the contemplation of Section 190? This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in clauses (a) (b) and (c) of Section 190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under Section 200 and the succeeding sections in Chapter XV of the 24 Code of 1973, he is said to have taken cognizance of the offence within the meaning of Section 190 (1)(a). If instead of proceeding under Chapter XV, he has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigating, or ordering investigation by the police under Section 156(3), he cannot be said to have taken cognizance of any offence."
However, the above view of the apex court has been doubted in Yogendra Pratap Singh, supra and the question has been referred to a larger bench and in the later judgment, the apex court has expressed its opinion thus:-
"7. A conjoint reading of Section s138 and 142 makes it abundantly clear that complaint under Section 138 can be fled only after the cause of action to do so accrues to the complainant in terms of clause
(c) of the proviso to Section 138 which as noticed earlier happens only when the drawer of the cheque in question fails to make the payment of the cheque amount to the payee or the holder of the cheque within 25 15 days of the receipt of the notice required to be sent in terms of clause (b) to the proviso to Section 138.
8. The upshot of the above discussion is that a complaint filed in anticipation of the accrual of the cause of action under clause (c) of the proviso to Section 138 would be a premature complaint. The complainant will have no legal justification to file such a complaint for the cause of action to do so would not accrue to him till such time the drawer of the cheque fails to pay the amount covered by the cheque within the stipulated period of 15 days from the date of the receipt of the notice. It follows that on the date such a premature complaint is presented to the Magistrate the same can and ought to be dismissed as premature and hence not maintainable. That is, however, not what happened in the case at hand. In the present case, the Magistrate took cognizance of the offence on 14th October, 2008 by which time the stipulated period of 15 days had expired but no payment towards the cheque amount was made to the complainant even upto the date the cognizance was taken. The commission of the offence was thus complete on the date cognizance was thus complete on the date cognizance was taken, but the complaint on the basis whereof the cognizance was taken remained premature."
26
6. In the light of the above contentions, the trial court having found that neither the respondent nor the petitioner had placed any material to indicate the actual date of receipt of notice in question, the presumption drawn by the court below that there being no dispute that the notice had been dispatched on 25.11.1998, the court having proceeded on the footing that since the notice was replied by the petitioner, there was no doubt that he had received the notice and since the notice was issued and received at Bangalore, the court having further presumed that the notice was apparently served well before 28.11.1998, cannot be said to be unreasonable or impermissible. As observed by the apex court in Bhaskaran's case, a strict interpretation of the provision to hold that the drawer has actually received the notice for the period of 15 days to start running, no matter that the payee sent the notice to the correct address, a trickster cheque drawer would get the premium to avoid receiving the notice by different strategies and he could escape from the legal consequences of Section 138 27 of the Act. The court should not adopt an interpretation which helps a dishonest evader and clips a honest payee defeating the very legislative measure. And further, from the principle incorporated in Section 27 of the General Clauses Act, it could safely be said that the notice was duly served on the drawer and if it was to be contended that it was received on a particular day and if the period of 15 days is computed from the said date, the complaint was premature, was a circumstance for the petitioner to have pleaded and established. Therefore, it cannot be said that the court below has committed any error.
Reliance placed by the learned Counsel for the petitioner on Sadanandan Bhadran, supra, wherein the apex court no doubt has expressed that the period of one month for filing a complaint would be reckoned from the day immediately following the day, on which, the period of fifteen days from the date of receipt of the notice by the drawer expires. This is the legal position, which is stated in passing. The emphasis in the said decision was not on the aspect whether, there was valid 28 service of notice and as regards the computation of time for filing of the complaint. Therefore, the emphasis being placed on the said observation, would not advance the case of the petitioner.
The opinion expressed in Ramanna's case, by a bench of this court runs counter to the opinion of the apex court in K.Bhaskaran's case and therefore, cannot be applied in support of the petitioner's case.
In Shakti Travels and Tours, supra, it was found as a fact that a complaint was filed before the expiry of 15 days from the date of service and therefore, it was held to be not maintainable. However, the decision in K.Bhaskaran, supra, is not referred to in the said decision.
Therefore, in the light of the findings of fact by the trial court and affirmed by the appellate court and having due regard to the legal position, with reference to the above case law, the 29 present revision petition lacks merit and is accordingly dismissed.
Sd/-
JUDGE nv