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2008 DIGILAW 318 (CAL)

Tarun Kumar Khemka v. Pawan Kumar Jhunjhunwala

2008-03-20

PARTHA SAKHA DATTA

body2008
Judgment :- (1.) THE only point involved in the appeal is whether statutory notice under clause (b) of Section 138 of the N. I. Act can be said to have been served upon the respondent-accused. (2.) AS per the petition of complaint (Complaint Case No. 52 of 2005)the respondent obtained a personal loan of Rs. 7 lac from the appellant and towards discharge of the legal debt the respondent made over a cheque for rs. 7 lac on 5.1.2005 drawn on Bank of Baroda, U. C. Road Branch, Kolkata which was dishonoured and consequently returned to the appellant on 26.4.2005 on account of insufficient fund. Appellant served a notice by a lawyers letter dated 6.5.2005 which was allegedly received by the respondent and the acknowledgment card (Exbt. 4) was returned back on 9.5.2005. Brother of the respondent, one Punit Kumar Jhunjhunwala despatched a letter to the appellant acknowledging acceptance of the notice but requested to supply the details of the cheque. In spite of service of notice payment was not made and hence the case. (3.) THE learned Magistrate only on the ground of non-service of the statutory notice acquitted the respondent. (4.) THE notice in the letter head of an Advocate Goutam Lahiri was written on 6. 5. 2005 but was signed by one Sutapa Chakraborty, also an advocate, but not by Mr. Goutam Lahiri. This is, however, not important. What is important is that notice was addressed to (1) Rajesh Kumar Jhunjhunwala (2) Pawan Kumar Jhunjhunwala and (3) Punit Kumar Jhunjhunwala all of 7, Jadulal Mallick Road, Calcutta 700 006. This notice is Exbt. 6. This notice was addressed to, on the body of the envelope, Rajesh Kumar Jhunjhunwala and it was received by the addressee on 9. 5. 2005. Postal receipt dated 6.5.05 (Exbt. 5) further confirms that the envelope was addressed to Rajesh Kumar jhunjhunwala. Punit Kumar Jhunjhunwala wrote a reply (Exbt.7} stating that the statements made in the notice are false and by this letter further details of the cheque were called for. In the reply it was stated inter alia "your client has served the instant notice upon me with a dishonest intention to make a wrongful gain and thereby to cause a wrongful loss to me. I vehemently oppose and dispute the statements and allegations made therein and say that your notice is not binding upon me in any manner. In the reply it was stated inter alia "your client has served the instant notice upon me with a dishonest intention to make a wrongful gain and thereby to cause a wrongful loss to me. I vehemently oppose and dispute the statements and allegations made therein and say that your notice is not binding upon me in any manner. " This is the reply of Punit Kumar jhunjhunwala, not of Pawan Kumar Jhunjhunwala, accused-respondent. Learned Magistrate reasoned that this does not satisfy the requirement of the law and in fact the notice was not addressed to the drawer of the cheque pawan Kumar Jhunjhunwala. (5.) MR. Sudipta Maitra, learned Advocates, appearing for the petitioner submits with reference to the decision in C. C. Alavi Haji v. Palapelly Muhammed and Anr., (2007)2 Cal LJ (SC) 153 : (2008)1 C Cr LR (SC) 69, K. Bhaskaran v. Sankaran Vaidhyan Balan and Anr. , (1997)7 SCC 510 and State of M. P. v. Hiralal and Ors. , (1996)7 SCC 523 that the learned Magistrate proceeded wholly on incorrect appreciation of evidence. According to him when the notice is properly addressed and stamped the presumption is that it has reached the addressee unless such presumption is rebutted but in the instant case no rebuttal has been made through defense evidence, secondly the notice is addressed to three brothers Rajesh Kumar Jhunjhunwala, Pawan Kumar jhunjhunwala and Punit Kumar Jhunjhunwala and one of the brothers accepted the notice and another brother /. e. Punit gave reply (Exbt.7). All the three brothers reside in the one premises when in such circumstances the service of notice has been accepted by Punit Kumar Jhunjhunwala and when the notice was addressed to all the three brothers it cannot be said that the requirement of the law was not satisfied. According to Mr. Maitra the denial of service of notice by the. accused in his examination under Section 313 of the Cr. P. C. unaccompanied by evidence of rebuttal of presumption is of no consequence. Therefore, it is immaterial as to which of the three brothers accepted the notice or which of them made a reply. According to Mr. Maitra the denial of service of notice by the. accused in his examination under Section 313 of the Cr. P. C. unaccompanied by evidence of rebuttal of presumption is of no consequence. Therefore, it is immaterial as to which of the three brothers accepted the notice or which of them made a reply. It has been submitted with reference to C. C. Alavi Haji (supra) that where the payee despatches the notice by registered posts with correct address of the drawer of the cheque, the principle incorporated in Section 27 of the General Clauses Act would be attracted unless and until the contrary is proved by the addressee. Service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. The decision in K. Bhaskaran (supra) and State of M. P. v. Hiralal (supra) were referred to in this decision and all the decisions centered round the position that when the notice is addressed to the drawer with correct address and it is despatched by registered post presumption of service of notice would be attracted and such presumption would continue to run unless the same is rebutted. Mr. Debashis Roy, learned advocate appearing for the respondent-accused does not dispute the proposition of law enunciated in the decisions cited by Mr. Maitra. The main thrust of the submission of Mr. Roy is that Section 138 (b) clearly mandates that the notice has to be addressed to the drawer and presumption of service of notice cannot be invoked unless it is proved through evidence that notice has been addressed to the drawer of the cheque and where the notice is not addressed to the drawer of the cheque the doctrine of presumption of service with the aid of Section 27 of the General Clauses Act would not be available. (6.) It appears upon hearing the learned Advocates for the parties that the case of the appellant ran on the footing that it was because of request by pawan Kumar Jhunjhunwala for advancement of personal loan of Rs. 7 lac that he made over the money to him. (6.) It appears upon hearing the learned Advocates for the parties that the case of the appellant ran on the footing that it was because of request by pawan Kumar Jhunjhunwala for advancement of personal loan of Rs. 7 lac that he made over the money to him. It was not a case that the three brothers were in a partnership firm and were of the directors of the said firm and on behalf of the firm request was made by Pawan Kumar Jhunjhunwala to advance a loan of Rs. 7 lac to the firm. Had it been so the position would have been a definitely different one because in a case of vicarious liability notice could be served on anyone of the directors of a partnership firm vicariously liable for refund of the loan. Here the case is that it was a purely personal loan (the word personal has been used in the petition of complaint) made over to Pawan kumar Jhunjhunwala and it was he (Pawan Kumar Jhunjhunwala) who issued the cheque as drawer in favour of the appellant but in cross-examination a different position appears. Here P. W. 1 the complainant-appellant says that "it is a fact that I advanced the loan to the partnership firm******** I have not produced any document to show that Rajesh Kumar Jhunjhunwala, Pawan kumar Jhunjhunwala and Punit Kumar Jhunjhunwala were partners of the firm******* it is a fact as I advanced the loan to the firm. Demand notice was issued to the three brothers****** I sent only one demand notice addressed to rajesh Kumar Jhunjhunwala. " In another place of his cross-examination he has stated "rajesh Kumar Jhunjhunwala, Pawan Kumar Jhunjhunwala and punit Kumar Jhunjhunwala are partners of a firm and I have filed the case against Pawan Kumar Jhunjhunwala only. " Thus the case in the petition of complaint has been given good bye in the cross-examination of P. W. 1. As I earlier observed, if it were the case of the appellant that the loan was advanced to the firm of which the three brothers were partners then the statutory notice to one of the partners or acceptance thereof by any one of them would have met the requirement of the law but that was not the case of the petition of complaint. That is sought to be the case in the cross-examination which cannot be allowed to stand as the case in the petition of complaint began with the story of advancement of a personal loan to Pawan Kumar Jhunjhunwala. Notice was addressed to all the brothers or acceptance of the notice by one of the brothers or reply made thereof by another of the brothers cannot be said to be the compliance with the requirement of the law. Law is well settled that presumption of service begins when the notice is addressed to the drawer of the cheque in correct postal address and properly stamped and is despatched through registered post. Mr. Maitras submission that addition of name of Rajesh kumar Jhunjhunwala and Punit Kumar Jhunjhunwala was of no consequence because of incorporation of the name of the respondent also in the same notice issued by the lawyer could have been with hesitation accepted if the notice was addressed on the envelope to the respondent Pawan Kumar Jhunjhunwala. The requirement in clause (b) of Section 138 of the N. I. Act is that notice has to be addressed to the drawer of the cheque. Here on the postal envelope the notice was not addressed to the drawer of the cheque. The notice was addressed to Rajesh Kumar Jhunjhunwala, and Punit Kumar Jhunjhunwala got it and wrote back saying that the said notice was not legally binding on him and unquestionably as he was not the drawer of the cheque he demanded of the complainant-appellant the details of the cheque spoken of in the notice. Therefore, the mere inclusion of the name of Pawan Kumar Jhunjhunwala in the Advocates letter along with the other two names but without the letter being addressed to that Pawan Kumar Jhunjhunwala on the envelope cannot be said to be the compliance with the law. It cannot be said that the notice was addressed to the drawer of the cheque. The whole case of the appellant would fall to the ground the moment he says in his cross-examination that it is a fact that as he advanced the loan to the firm, demand notice was issued to the three brothers because that was not the case of the complainant in the petition of complaint. Where the notice has not been properly addressed to the drawer of the cheque question of presumption of service is a far cry. Where the notice has not been properly addressed to the drawer of the cheque question of presumption of service is a far cry. (7.) SITUATED thus, I do not think that the learned Magistrates judgment and order of acquittal has any serious flaw requiring interference by this High court. (8.) I dismiss the appeal and confirm the judgment and order of the learned Magistrate. (9.) A copy of the judgment and order shall be sent to the learned metropolitan Magistrate, 13th Court, Calcutta in connection with case No. C-521 of 2005.