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Madhya Pradesh High Court · body

2006 DIGILAW 745 (MP)

N. K. Sabarwal v. Rauf Khan

2006-05-19

D.C.MAHESHWARI

body2006
ORDER Maheshwari, J. --1. This petition is directed under section 378 (4) of CrPC for seeking special leave to appeal against the judgment dated 19.1.2006 passed by Judicial Magistrate, First Class Jabalpur in Complaint Case No. 97/05 acquitting the respondent from the charge punishable under section 138 of Negotiable Instruments Act, 1881 (in short "the Act") 2. The facts giving rise to this petition are that the complainant being a dealer of medicine was under receipt of cheque No. 8785311 for sum of Rs. 1,30,000/- from the respondents in connection of his business transaction. One affidavit was also sworn by the respondent in order to explain the circumstance for payment through cheque. The cheque was deposited with his Banker i.e. Central Bank of India for collection but the same was returned unpaid firstly on 25.9.2002, and then on 13.11.2002, 4.12.2002 and lastly on 21.12.2002 but on account of insufficient fund in the account of respondent same was dishonoured and returned to the applicant with the memo of the Bank. Thereafter as alleged on 28.12.2000 a registered notice under section 138 (b) of the Act was sent to the respondent on behalf of the applicant, but in the stipulated period payment of cheque was not made to the applicant. Hence, the said complaint was preferred for the offence under section 138 (b) of the Act. On taking cognizance against the respondent under the aforesaid section, he appeared in the trial Court. After recording the plea trial was held in which the applicant has examined himself and one other witness namely Shri Sharad Kumar Rakesh while two witnesses namely Shri Vijay Bhan Singh and Shri R.P. Dubey, Sub Post Master were examined by the respondent on his defence. 3. On appreciation of it the transaction in between the parties was found genuine but on account of non-compliance of procedure of section 138 (b) of the Act the respondent was acquitted. Hence, this petition is preferred for special leave to appeal. 4. Shri Narendra Chouhan, learned counsel for the applicant has submitted that on receiving the information about dishonouring the cheque on 21.12.2002, he sent a notice to the respondent through registered post as per requirement of section 138 (b) of the Act. A copy of such notice is exhibited as Ex. P-9. The same was served by Ex. P-5. The acknowledgement due receipt. A copy of such notice is exhibited as Ex. P-9. The same was served by Ex. P-5. The acknowledgement due receipt. Hence, aforesaid provisions was fully complied with but the trial Court has committed grave error in holding that there is no reliable evidence either for sending the notice or for service of the same. According to him even in the lack of seal of post office on acknowledgement due receipt it was reliable and admissible because this mistake was not committed by the applicant. His further submission was that in view of acknowledgement due receipt, postal receipt for sending the aforesaid notice was not necessary to produce or proved on the record. Hence, even in the absence of it the trial Court was bound to draw inference that notice sent by the applicant was duly served in accordance with the provisions of section 138 of the Act but on wrong interpretation and appreciation the respondent was acquitted by the impugned judgment and prayed for granting special leave to appeal. 5. Having heard learned counsel for the applicant, I have gone through the record and I have not found any postal receipt for sending the demand notice to the respondent. So in the absence of such receipt no presumption can be drawn in favour of the applicant for sending the said notice through registered post either under section 3 (c) of Post Office Act, 1898 or under section 114 (c) of the Evidence Act or under section 27 of the General Clauses Act, 1897. It was the duty of the applicant to proved by reliable evidence that notice was sent through registered post and this would have been proved only by submitting postal receipt or by calling the record of post office but no evidence was led by the applicant in this regard. 6. Coming to the acknowledgement due receipt (Ex. P-5), it is apparent that no registered letter number or postal receipt number have been mentioned in it. It does not having any seal of the post office either at the time of sending to the addressee or at the time of returning to sender (applicant). 6. Coming to the acknowledgement due receipt (Ex. P-5), it is apparent that no registered letter number or postal receipt number have been mentioned in it. It does not having any seal of the post office either at the time of sending to the addressee or at the time of returning to sender (applicant). It appears to be a post card in which at the address side the name of Narendra Chouhan, learned counsel for the applicant is mentioned and other side the address of the respondent is mentioned but no connecting infomation is mentioned on which it could be connected with registered notice. Hence, merely on the basis of deposition of the applicant complainant it cannot be said that Ex. P-5 is a acknowledgement due receipt of the registered notice. Even the concerning Advocate Shri Narendra Chouhan was not examined to prove the fact that it was received by him. Therefore, in the absence of said postal receipt for sending the notice alongwith the aforesaid circumstance and also non-examination of said Shri Narendra Chouhan Advocate, aforesaid Ex. P-5 could not be treated as acknowledgement due receipt of registered notice. In view of this mere on the basis of copy of notice (Ex. P-4) it could not be assumed that the provisions of section 138 (b) of the Act was complied with by the applicant. 7. Although on behalf of the applicant two cases have been cited but the same are not helping him as in the matter of B. Kiranmay v. Prasoona Traders reported in [II (2005) BC 471] in which the High Court of Andhra Pradesh has considered and decided that complaint could not be quashed at the initial stage by taking into consideration the defence of the accused, it shows that this case was decided dealing with the quashment at the initial stage while in the case at hand was decided on merits by the trial Court after recording the evidence and on its appreciation. In the matter of Neelesh Kumar v. Janardhana reported in [II (2005) BC 223] in which the High Court of Karnataka has held that wherever service of notice is disputed then same be decided after recording the evidence and it was held that proceeding under section 138 of the Act could not be quashed at the initial stage under section 482 of the CrPC while the case at hand was not decided at the initial stage but this is decided after recording the evidence. Thus, this stand is also not helping the applicant. 8. In view of the aforesaid discussion the evidence of the trial Court regarding non-compliance of the provisions of section 138-B of the Act for sending the demand notice is proper and it does not require any interference at this stage. Hence, I do not find any ground to grant special leave to appeal. Resultantly, this petition derserves to be and is hereby dismissed at the stage of motion hearing.