Karnataka High Court
Mr G R Shet vs T C Ganesh on 18 November, 2011
Author: Subhash B.Adi
Bench: Subhash B.Adi
INTHE HIGH COURT OF KARNATAKA, BAN GALORE DATED THIS THE 18'™ DAY OF NOVEM BER 201 l BEPORE a _ Os THE HON'BLE MR.JUSTICE SU BHASIL BAI CRIMINAL APPEAL NG.S 3 OF 2006 | BETWEEN : MR. G.R.SHET _ S/O LATE K.R.K.SHET HINDU, ADULT _ . PROP; M/S SHET & CO., K.S.RAO ROAD MANGALORE = 575.001,DE v0 | ... APPELLANT (BY SRI.O,SHIVARAMA BHAT, ADVOCATE) AND: TC, GANESH S/O TP. KU MARAN, ADULT a PRG IP: CANESH BAKERY RODIAL BAIL, MANGALORE - R/AT GANESH VIHAR "MARIGUDE CROSS OPP: WIRELESS MAIDAN URVA, MANGALORE, D.K. ... RESPONDENT "BY SRLKETHAN BANGERA FOR SRI. L.THARANATH POQJARY , . ADVOCATE] This Criminal Appeal is filed under Section 378. of Cr.P.C. praying that this 28.10.2005 passed by the H Addl. Co. (Jr.Dn.) & JMPC.. Mangalore, D.K., in C.C.No.18963/97, .....
bag acquitting the respondent -~ accused for the offence P/U/S.138 of NUT. Act. nO This appeal coming on for hearing this' day. 'the AS ~ourt made the following: ~ JUDGMENT -
This appeal is by the complainant against rhe judgment of acquittal in C.C.No.189635 3/1997 dated 98, 10. 2005 on the file of the H Addl. Civil Judge (ur. 'bay é & IMEC, Mangalore, DK.
2. Convlainant-tiad filed a private complaint under Section 230" of One. C, against the accused for the offence punishable under Section l 38 of the Negotiable Instruments Act, 1881 (for short they Act'). His case was that accused had i borrowed toan fromy the complainant and for re-payment of > the same, he nad issued Cheque bearing No.583936 dated 13.6, 19 97. fo or 7 2,.95,000/- drawn on Vijaya Bank, Mangalore in the naime of M/s. Shet and Company. The complainant is tie proprietor of the said C ompany. On presentation of the . ms "hea e, the banker of the accused returned the same with an & endorsement "insufficient fund". As required under Section Ee :
L .
Se 138 of Aci, the complainant issued a notice dated 20.6. 1997 calling upon the accused to pay the amount mentioned in the Cheque. However, accused did not reply. As "such, the complainant filed a private complaint. On issue of summons, ;
accused appeared. Before the Trial. Court, comp sina ant got himself examined as Pwel. - "He als 30 "examined PW. 3 the postman and one witess, ae PW-2, On- the side of the defence, accused got himse if exami ned - as DW-1. He also examined DWs. 2 to 5. e the' éviderioe of the complainant, Exs.P1 to) P26 ; "Were Warked and in the evidence of the accused Exs. pt ic D9 were marked.
3. The Trial Court. on appreciation of the evidence,
-. found that. the complainant has proved that the accused had i 'issued Cheque and has also proved that there was a transaction between complainant and accused, the accused used to borrow money from the complainant. Relying on the "admissions of the accused. the Trial Court held that the . accused has not substantiated with the specific evidence that he has nothing to pay e complainant towards Ex.P] Le.
ee ea a = Eee the Trial Court held that the accused is due to the complainant and proved the liability,
4. However, accused had taken a defence that there was no demand as contemplated under Section 138 of the Act as he was not served with any' nietice demanding the re-payment of the said amount. In this regard. he relied-on Ex.P4 and submitted that the acknowledge nent produced by the complainant bears the address-as, under:
"SPLT, C Ganesh. | Proprietor | Ganesh. Bake?i. Redialbail Mangalore'. 570 003"...
5. He further submitied that the complainant knew that the accused had sold thie bakery and he is not residing in the
- said 'address. In the complaint, complainant has given the : add ress of bakery and the residential address of the accused. However : complainant had not issued notice to the residential
-- "address. of the accused. Though the complainant examined PW-3 the postman, the postman, in his evidence, admitted »that he had gone te the address mentioned on the postal Qf ae om 'ud a ss ae Jom if me pie dol fe on, dramas ist bout a rat 'eam Ps Hee as Grane, pia ety Oe smn oul fa Jat me % we Cie em, Dowels "f.
joo pod °% fa aera oust on ee ions foe ised 4 fn 'ad et ~4 Pe ig phe oh Nema ss pera, paral! oe be Brgronl Anat Yoo wi ny "naa inet boserl iene Soa fooet RESTS SEIU NEALE IIZK ee .
L Be ee oe S | ea) the said premises, but he cannot say that he had served the postal cover to the person whose name is mentioned over the said cover. He had only tendered it to the person available in the said premises. Even PW-1 the ec complainant . in his cross-.
examination, has admitted that the : accused Ganesh sold the bakery. [t is also indicated 'in the demand 'notice that the accused is likely to sel] the bakery. "According to the accused, he had sold the establishment much prior to the issue of notice, The: T rial. Court, re clying on the evidence of the accused, - cross: es sxannin ation of PW-1 and the postman's evidence, held hat there is no service of notice and in the ee absénce of demand, the allegation made in the evidence of the os 'complainant do not constitute the ofence and accordingly, it has acquitted the accused.
AF No doubt, a presumption arises under Section 27 of the General Clauses Act as regard to the service of notice that if a notice is sent to a proper address sufficien tiv stamped cover containing document with acknowledgement due. Now s 6 as far as this sufficiency of stamped cover. containing document with acknowledgement due are concerned, the complainant has proved the same by producing "Ex P4, However, the dispute is as to the proper address. | According. to the complainant. the address shown oni the cover and the acknowledgement is the correct address, buit tite accused had taken a defence that the bakery was sold and he was not in possession of the said premises:
8. The presumption arising . under Section 27 of the General _ Clauses "Act as. "to. service is a rebuttable presumption, No. doubt, accused had also adduced evidence.
To prove the sétyiog' postman iS required to be examined. . The. postman though exami ned has stated that he has served MS the. cover onthe very same address and the signature found on the acknowledgement Ex.P4 is of a person who was found Pad
9. it is pertinent to note that the signature is found on the acknowledgement Ex.P4, Admittedly, if the accused was SEP 2 ee said bakery was sold to one Gregory Mathias,.in normal circumstances Gregory Mathias would not have received the a cover as it is not addressed to him. Furt tier, i he postinan states that it has been served.to the person' (uid in the. premises. Cover has not been -returned as | adresse ; not found' or 'address is incorrect' but it has . béen served.
Postman also admits that it nas bee on. served:
10. It is-at this stage,the learned counsel for the complainant submitted that the Trial Court has held that the accused had 'borrowed, t the loan and had issued the Cheque.
Even after prov. ing: thet the accused had committed an olfence, only on the "ground that there was no service of me notice, accused has-been acquitted and if an opportunity is io given to the complainant, he would prove the service of notice or | tine acctis sed by adducing additional evidence. Learned counsel for the accused also submits that the matter may be "remanded.
1]. The Apex Court, in a judgment reported in ATR 198 oC 12584 in the matter of 'HAR CHARAN SINGH v. SHIV RANI f i i ocean een Bou NBO SOS ER SISES EG Heo nN SECS CUES aE & OTHERS', on interpretation of Section 27 of the General Clauses Act. has held that the presumptions -both under Section 27 of the General Clauses Act as well as under
Section 114 of the Evidence Ack are rebuttable bit in the.
absence of proof to the contrary. the , presumption: of proper service or effective service on the addressee 'would arise. Which must mean service of everything that is contained in the notice. It cannot be said that: before knowledge of the contents of the notie? could be imputed the sealed envelope must be 'opened. . en ° things -do not occur when the addressee is : deitimin ed to 'decline to accept the sealed envelope. .
- . 12. Though there is no such a situation of declining to o 'accept the postal cover, Dut the question is as to on whom the notice was seived. it is in these circumstances, | find that, when the complainant has proved the liability and issue of Cheap e, he should be given an opportunity to lead further : evidence fo prove that the notice was properly served. Hence, I find that the judgment of the Trial Court could be set aside.
RTE ee.
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13. Accordingly, T pass the following;
Appeal is partly allowed. 8 : Judginent in C.C.No.18963/ 1997 dated 22.10.9005. om the file of the Addl. Civil Judge (Jr, Dn.) & IMFC. Matigalore, D-K. is set aside. Matter is rersitted fo the Trial Court to record additional evidence, if any, from the parties and pass appropriate judgment... ~ i4. Both the counsel submit that if a date is given, parties would appear before the Trial Court. Hence. both the partics are directed to appear before the Trial Court on OLE"
Sd/< JUDGE RY ee ee eS ese aee i ee