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Himachal Pradesh High Court · body

2000 DIGILAW 183 (HP)

SOHAN THAKUR v. STATE OF HIMACHAL PRADESH

2000-07-20

R.L.KHURANA

body2000
JUDGMENT R.L. Khurana, J.—The petitioner, Sohan Thakur, hereinafter referred to as the accused, stands convicted by the learned Chief Judicial Magistrate, Solan, in case No. 42/3 of 1994 vide judgment dated 28.11.1997 for the offence under Section 138, Negotiable Instruments Act, 1881 (for short: the Act) and sentenced to undergo simple imprisonment for six months and to pay fine of Rs. 30,000/ -. In default of payment of fine, he has been sentenced to undergo simple imprisonment for further period of six months. Out of the amount of fine, if realised, a sum of Rs. 24,750/- was ordered to be paid to respondent No. 2 Shri Uma Datt Sharma, hereinafter referred to as the complainant. 2. On appeal by the accused, the learned Sessions Judge, Solan, vide judgment dated 15.5.1998 while maintaining the conviction of the accused as recorded by the learned Magistrate, reduced the sentence to simple imprisonment for two months and fine of Rs. 30,000/-. The sentence imposed in default of payment of fine was, however, maintained. The order of the learned Magistrate that a sum of Rs. 24,750/- out of the amount of fine, if realised, be paid to the complainant was also maintained. 3. Feeling aggrieved, the accused has come up before this court by virtue of the present revision petition under Sections 397 and 401, Code of Criminal Procedure, assailing the conviction and sentence imposed upon him by the two courts below. 4. Briefly, the prosecution story may be thus stated. The accused is the sole proprietor of Messrs. Sristhy Seeds Farm (Regd). He, in December 1993, purchased capsicum seeds worth Rs. 24,750/- from the complainant, a seed grower. The payment towards the cost of the seeds was made by the accused vide two post-dated cheques as under:— (i) Cheque No. QSJ-106313 dated 2.1.1994 drawn on Punjab National Bank, Solan, for a sum of Rs. 18,450/-; and (ii) Cheque No. QSJ-106316 dated 2.2.1994/ drawn on Punjab National Bank, Solan for a sum of Rs. 6,300/-. 5. Both the cheques on having been presented to the bank by the complainant were dishonoured on the grotind of insufficiency of funds in the account of the accused. A registered notice dated 16.2.1994 was then sent to the accused calling upon him to pay the amount of the two cheques within 15 days from the date of the receipt of the notice. A registered notice dated 16.2.1994 was then sent to the accused calling upon him to pay the amount of the two cheques within 15 days from the date of the receipt of the notice. The accused refused to accept such notice and also failed to pay the amount. Accordingly, a complaint came to be filed by the complainant against the accused for his prosecution for the offence under Section 138 of the Act. 6. The, accused in his statement under Section 313, Code of Criminal Procedure, admitted the purchase of seeds from the complainant and that two cheques for a sum of Rs. 18,450/- and Rs. 6,300/- respectively. He pleaded that the payment of post-dated cheques were stopped by him since as per the terms of the sale of seeds the cheques were to be cleared only after the germination test of the seeds. He denied the receipt of notice. 7. It is by now well settled that the High Court in exercise of its revisional powers cannot re-appreciate the evidence for taking a view different from the one taken by the two courts below, unless there is glaring feature which would otherwise tantamount to gross miscarriage of justice. [See: State of Kerala v. PutturnanaillathJathavedan Namboodiri, (1999) 2 SCC 452]. 8. While assailing the conviction and sentence, the learned Counsel for the accused has first contended that the notice required to be served under clause (b) of the proviso to Section 138 of the Act has not been proved to have been served, therefore, the necessary ingredient to constitute the offence is missing. Clause (b) of the proviso to Section 138 of the Act, provides:— "the payee or holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque, within fifteen days of the receipt of information by him from the Bank regarding return of the cheque as unpaid." 9. Admittedly, in the present case registered notice, copy of which is Ex. CW 1/E, was never received by the accused. Such, notice was returned as "refused" as is evident from the registered envelopes Ex. CW 1/F and CW 1/G. 10. Admittedly, in the present case registered notice, copy of which is Ex. CW 1/E, was never received by the accused. Such, notice was returned as "refused" as is evident from the registered envelopes Ex. CW 1/F and CW 1/G. 10. In Inderjeet Bhatia and others v. State of U P. and another, [II (1993) B.C. 34], the notice as required under clause (b) of the proviso to Section 138 of the Act by the complainant therein to the accused was received back with the endorsement "out of station". On notice having been again sent, it was received back with the endorsement "left without address". A contention was raised that in the absence of service of notice, a complaint under Section 138 of the Act was not competent. It was held that the law does not provide for service of notice. In case such an interpretation, as put forward, was allowed to prevail, then it would be very easy for the accused in such offences to avoid the service of notice and frustrate the prosecution conveniently. 11. In S.K. Trading Co, and another v. Beerbal Bass Jindal and ^others [1 (1995) B.C. 483] also it has been held that the law does not require that the notice should actually be served on the accused. Mere proof of sending the notice is sufficient and the complainant cannot be held responsible if the accused refuses to accept notice or omits to mention the date of the receipt of notice. 12. This Court also in Jagdish Mohan v. Rajinder Kumar [Criminal Revision No. 60 of 1997, decided on 25.6.1997 has taken a similar view. 13. A similar question also arose before the Honble Apex Court in K. Bhaskaran v. Sankaran Vaidhyan Balan and another [1999 (4) Crimes 212]. In this case, the notice sent to the accused therein by the complainant was returned as "unclaimed”. It was held:— "On the part of the payee he has to make a demand by giving a notice in writing. If that was the only requirement to complete the offence on the failure of the drawer to pay the cheque amount within 15 days from the date of such giving’ the travails of the prosecution would have been very much lessened. If that was the only requirement to complete the offence on the failure of the drawer to pay the cheque amount within 15 days from the date of such giving’ the travails of the prosecution would have been very much lessened. But the legislature says that failure on the part of the drawer to pay the amount should be within 15 days of the receipt of the said notice. It is, therefore, clear that giving notice’ in the context 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 the notice to the drawer in the correct address. In Blacks Law Dictionary giving of notice is distinguished from receiving of the notice. (Vide page 621). 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 to know of it. A person receives a notice when it is duly delivered to him or at the place of his business. I 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 in 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 of the Act. It must be borne in mind that court should not adopt an interpretation which helps a dishonest evader and clips an honest payee as that would defeat the very legislative measure. In Maxwells Interpretation of Statutes, the learned author had emphasized that provisions relating to giving of notice often receive liberal interpreation. (Vide page 99 of the 12th Edn.). 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 words in clause (b) of the proviso to Section 138 of the Act show that payee has the statutory obligation to make a demand by giving notice. The words in clause (b) of the proviso to Section 138 of the Act show that payee has the statutory obligation 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 for giving the notice. Once it is despatched his part is over and the next depends on what the sendee does." 14. No doubt, the drawee of the cheque, that is, the accused has the right to show that he had no knowledge that the notice was brought to his address and/or that the receipt thereof was never refused by him. However, in the present case no attempt has been made by the accused to discharge the burden placed upon him to rebut the presumption as to service of notice. Therefore, there has been proper compliance of the requirement of clause (b) of the proviso to Section 138 of the Act by the complainant. 15. The plea raised by the accused that as per the terms of the cheque were to be encashed only after the seeds after test were found to be of a particular quality and standard and that since such seeds were not found upto the stipulated quality and standard, the payment of the cheques were stopped by him, is, on the face of it, false. 16. No evidence is forthcoming that the payment of the cheques was ever stopped by the accused. Rather the evidence coming on the record is to the effect that the accused was having only a sum of Rs. 442/- in his account as on the day the cheques were presented for encashment. The cheques were dishonoured by the bank of the accused on 8.2.1994. As per the accused own evidence the seeds were got tested by him from DW 2 Shri K.S. Chauhan, Seed Testing Officer, only on 29.3.1995, that is, during the pendency of the present case before the learned Magistrate. The defence put forth is, therefore, only an after thought. Even otherwise there is nothing on the record to show that the seeds tested by DW 2 were those which were purchased by the accused from the complainant. The necessary link evidence is missing. 17. The defence put forth is, therefore, only an after thought. Even otherwise there is nothing on the record to show that the seeds tested by DW 2 were those which were purchased by the accused from the complainant. The necessary link evidence is missing. 17. The two courts below have rightly not placed any reliance on the letter Ex. DA dated 28.1.1994. As pointed out above, the seeds were got tested by the accused only on 29.3.1995. These were never got tested prior to 28.1.1994. Therefore, the accused could not have known about the quality and standard of the seeds at the time of the alleged letter Ex. DA. Though, letter Ex. DA is stated to have been sent under registered cover vide postal receipt Ex. DB, it is significant to note that the date on Ex. DB is not decipherable. There is no other evidence linking Ex. DB with Ex. DA. 18. On the basis of evidence coming on record, the offence under Section 138 of the Act stands proved against the accused beyond all reasonable doubts. The accused, therefore, stands rightly convicted by the two courts below. 19. Insofar as the question of sentence imposed upon the accused is concerned, one aspect, though neither side has argued before this court, requires elucidation. 20. Section 138 of the Act provides for punishment of imprisonment for a term which may extend to one year or with fine which may extend to twice the amount of cheque, or with both. 21. As noticed above, the learned Magistrate has imposed the sentence of imprisonment for six months and a fine of Rs. 30,000/ - on the accused. In default of fine, imprisonment for a further period of six months has been imposed. The learned Sessions Judge reduced such sentence to imprisonment for two months and fine of Rs. 30,000/-. In default of payment of fine, imprisonment for a period of six months has been imposed. 22. 30,000/ - on the accused. In default of fine, imprisonment for a further period of six months has been imposed. The learned Sessions Judge reduced such sentence to imprisonment for two months and fine of Rs. 30,000/-. In default of payment of fine, imprisonment for a period of six months has been imposed. 22. Section 30, Code of Criminal Procedure, which deals with imposition of sentence of imprisonment in default of fine, reads:— "(1) The Court of a Magistrate may award such term of imprisonment in default of payment of fine as is authorised by law: Provided that the term— (a) is not in excess of the powers of the Magistrate under Section 29; (b) shall not, where imprisonment has been awarded as part of the substantive sentence, exceed one-fourth of the term of imprisonment which the Magistrate is competent to inflict as punishment for the offence otherwise than as imprisonment in default of payment of the fine. (2) The imprisonment awarded under this section may be in addition to a substantive sentence of imprisonment for the maximum term awardable by the Magistrate under Section 29." 23. Since the maximum period of sentence of imprisonment in the present case is one year, the sentence of imprisonment in default of fine could not have exceeded l/4th of such term. In other words, sentence of imprisonment in default of payment of fine could not have exceeded three months. The two courts below, therefore, have erred in awarding sentence of imprisonment for a period of six months in default of payment of fine. The sentence of imprisonment in default of fine is as such reduced to three months. The substantive sentence of imprisonment and fine, as recorded by learned Sessions Judge is, however, maintained. 24. Subject to the modification in the sentence, as indicated above, the present revision petition is dismissed. The petitioner, who is on bail, to surrender before the learned trial court within four weeks from today to receive and serve out the sentence imposed upon him. On the failure of the petitioner to surrender as directed, the learned trial court will proceed against him in accordance with law. Revision petition dismissed.