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2004 DIGILAW 1214 (RAJ)

Deepak Chordia v. Rajendra Sen

2004-08-26

H.R.PANWAR

body2004
JUDGMENT : 1. - By the instant leave to appeal, appellant-respondent has challenged the impugned judgment dated 27.8.2002 passed by the learned Additional Sessions Judge No. 3, Udaipur (for short, "the lower Appellate Court"), by which the appeal filed by respondent-accused has been allowed and he has been acquitted of the offence under Section 138 of the Negotiable Instruments Act (for short, "the Act") reversing the judgment of conviction and sentence dated 31.1.2002 passed by the learned Additional Chief Judicial Magistrate No. 2, Udaipur (for short, "the Trial Court"). 2. The facts of the case, relevant and necessary for disposal of this leave to appeal, are that in pursuance to the agreement Ex.D/1 on record to Trial Court, the appellant-complainant (sic) period of marble cutting work for the accused-respondent and in lieu thereof, the accused respondent issued two cheques dated 3.10.1999 and 3.11.1999 for a sum of Rs. 1,15,000/- and 50,000/-, respectively. On the presentation, the bank dishonoured those cheques. However, on 15.1.2000, the accused-respondent gave a sum of Rs. 45,000/- in cash to the appellant complainant and for rest amount, two cheques for Rs. 60,000/- each were given to the appellant-complainant but on presentation, those cheques could not be honoured because of closure of bank account by the accused-respondent. The appellant-claimant served a registered notice dated 24.3.2000 through his advocate, which was returned with the endorsement that despite various attempts the accused respondent was not found available. The learned Trial Court, after hearing the parties, vide judgment dated 31.1.2002, allowed the complaint, convicted the accused-respondent for the offence under Section 138 of the Act and sentenced him to the simple imprisonment for one year and a fine of Rs. 1,60,000/- and in default of payment thereof further to undergo one month's simple imprisonment. Being aggrieved and dissatisfied by the judgment dated 31.1.2002 passed by the Trial Court, the accused-respondent preferred an appeal before the learned lower appellate Court, which has been allowed vide impugned judgment dated 27.8.2002. Hence this leave to appeal. 3. I have heard learned counsel for the parties and perused the judgments passed by the Courts below as well as the record. 4. Hence this leave to appeal. 3. I have heard learned counsel for the parties and perused the judgments passed by the Courts below as well as the record. 4. The main thrust of arguments advanced by the learned counsel for the appellant-complainant is that the learned lower appellate Court has erred in law and on facts in acquitting the accused-respondent on the ground that there was no proper service of notice upon the accused-respondent. The contention of the learned counsel for the appellant-complainant is that there was deliberate evasion by the accused-respondent to accept the notice, which would amount to constructive notice. 5. On the other hand, learned counsel for the accused-respondent has contended that the Scheme of the Act does not envisage constructive notice under sub-clause, (c) of Section 138 of the Act and as such the complaint was liable to be dismissed for want of proper notice. In support of his contention, learned counsel for the accused-respondent has placed reliance upon R.M. Sundaram v. C.M. Ramraj, 1993(3) Crimes 175 (Mad.). 6. The pertinent question arises for consideration is whether there was proper service of the notice sent upon the accused-respondent for holding him liable for the offence under Section 138 of the Act. In the instant case, the registered notice Ex.P/5 dated 24.3.2000 was sent by the appellant-complainant through his counsel to the accused-respondent at the address : 19, Diamond Complex, Bedia, Udaipur, whereas in the memo of leave to appeal, apart from the aforesaid address, the present address of the accused been given as : 112, Navratan Complex, Bedla Road, Udaipur. The said notice has been returned with the endorsement that despite attempts for 7 days, the accused-respondent was not found. There is no endorsement to the effect that the accused-respondent refused, avoided or declined to accept the notice. For constituting an offence under Section 138 of the Act, the payee or holder should give notice demanding payment within fifteen days of his receiving information of dishonour of cheques, which should be for no other reason than for insufficiency of fund; the drawer can make payment within fifteen days of receipt of the notice and only if he failed to do so, he is liable to be prosecuted and complaint can be made only by the payee or the holder in due course within one month of the arising of the cause of action. 7. 7. In B. Adhikari v. Ponraj, 1996 CrLJ 180 , the Hon'ble Madras High Court held as under : "A combined reading of sub-clauses (b) and (c) of Section 138 would clinch the fact impliedly that the cause of action for a drawee to lodge a complaint under the above section of law would arise only after making the demand to the drawer claiming the amount to be paid by giving a notice in writing within 15 days from the date of dishonour of the cheques and if not, the section clearly provides that there may be no valid demand and the cause of action provided may not arise for the offence clearly spelt out in the above section of law. Thus, where no notice making demand for payment was served upon the drawer as contemplated under sub-clauses (b) and (c) of Section 138 of the Act, which would mean that no demand has been made within 15 days from the date of dishonour of the cheques in question, the conviction for offence under Section 138 would not be sustainable." 8. In A. Sudershan v. Mannen (Shabir) & Ors., 2000 DRC 35 , demand notice was returned with the postal endorsement "not found seven continuous days". The Hon'ble Andhra Pradesh High Court held that due to non-service of notice on the accused in terms of Clauses (b) and (c) of Section 138 of the Act, the offence is not constituted and the order of acquittal cannot be interfered with. 9. In the instant case, there is no evidence led by the complainant-appellant that the notice was sent at the correct address of the accused-respondent. The address given on the notice Ex.P/5, the cover of registered letter and its endorsement is different from the present address of the respondent-accused given in the memo of leave to appeal. Further, there is no case of the appellant-complainant that at the relevant time, the accused-respondent was available at the address given in the notice etc. Therefore, the lawful presumption, which can be drawn, is that the notice was not sent at the correct address of the accused-respondent. Further, there is no case of the appellant-complainant that at the relevant time, the accused-respondent was available at the address given in the notice etc. Therefore, the lawful presumption, which can be drawn, is that the notice was not sent at the correct address of the accused-respondent. Secondly, the scheme of the Act does not envisage constructive notice under sub-clause (c) of Section 138 of the Act and as such, the endorsement "not found despite 7 days' attempt" does not amount to proper service of notice as contemplated under sub-clause (c) of Section 138 of the Act and on this count also, the complaint is liable to be dismissed for want of proper notice. 10. A bare perusal of the provisions of Section 138 of the Act does not contemplate constructive notice and mandates that the notice must have been received by the addressee. It is only after receipt of the notice, the accused-respondent was liable to make payment within fifteen days from the date of receipt of the notice and failure to do would have made him liable for prosecution under Section 138 of the Act. When the unserved notice was returned to the appellant-complainant then it was expected from him to get the notice served on the accused-respondent at his correct address. Mere return of unserved notice does not lead to presumption of service thereof. On account of non-service of cause of action accrued to the appellant-complaiant and for want of cause of action, the complaint filed by the appellant-complainant was liable to be dismissed. 11. It has also been contended by the learned counsel for the appellant-complainant that there is no denial by the accused-respondent that the notice was not sent to him at his correct address and as such the learned lower appellate Court has erred in law in not taking into consideration the provisions of sub-clauses (b) and (c) of Section 138 of the Act and Section 27 of the General Clauses Act. As stated above, there is no endorsement by the postman that the respondent-accused refused to take notice. The notice has not been sent at the current address of the accused-respondent The scheme of the Act does not envisage constructive notice under sub-clause (c) of Section 138 of the Act, as discussed above. 12. As stated above, there is no endorsement by the postman that the respondent-accused refused to take notice. The notice has not been sent at the current address of the accused-respondent The scheme of the Act does not envisage constructive notice under sub-clause (c) of Section 138 of the Act, as discussed above. 12. So far as provision of Section 27 of the General Clauses Act is concerned, for application of the provision of this Section, there should be an endorsement that the addressee has refused to accept the letter under registered cover, as held by the Hon'ble Supreme Court in Gujrat Electricity Board & Anr. v. Atmaram Sungomal Poshani, AIR 1989 Supreme Court 1433. In M/s. Madan & Co. v. Wazir Jaivir Chand, AIR 1969 Supreme Court 630 , while interpreting the provision of Section 27 of the General Clauses Act, the Hon'ble Supreme Court held that a postman cannot be equated with the process-server. In the instant case, there is no endorsement on the notice by the postman that the respondent-accused refused to accept the notice, the provision of Section 27 of the General Clauses Act does not come to the rescue of the appellant-claimant. 13. The learned Trial Court, while convicting and sentencing the accused-respondent, placed reliance on the decision of the Hon'ble Supreme Court in K. Bhaskaran v. Shankaran Vaidhyan & Anr, 2000 ANJ SC 147 , therein the Apex Court held that if the notice has been sent at the correct address then it will be presumed that the addressee has received the same. Such presumption can be drawn only when the addressee has refused to accept the notice. Learned counsel for the appellant has also relied on the said judgment. In the instant case, there is no endorsement by the postman that the accused-respondent refused to accept the notice, rather it has been endorsed thereon that despite efforts for seven days, the accused-respondent could not be found at the said address. Thus, the judgment in K. Bhaskaran's case (supra) turns on its own facts and is of no help to the appellant. The learned lower appellate Court has discussed the law on the point in details and allowed the appeal of the accused-respondent by a detailed and well-reasoned judgment. Thus, the judgment in K. Bhaskaran's case (supra) turns on its own facts and is of no help to the appellant. The learned lower appellate Court has discussed the law on the point in details and allowed the appeal of the accused-respondent by a detailed and well-reasoned judgment. After careful scrutiny, evaluation and scanning of the evidence and law point involved in the instant case, I do not find any error, illegality or perversity in the impugned judgment passed by the learned lower appellate Court. 14. Consequently, the leave to appeal, filed by the appellant- complainant, lacks merit and it is accordingly dismissed.Accordingly dismissed. *******