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Gauhati High Court · body

2010 DIGILAW 12 (GAU)

Sardar Jagir Singh v. Ranjit Baruah

2010-01-08

C.R.SARMA

body2010
JUDGMENT C.R. Sarma, J. 1. By this appeal, under Section 378 of the Code of Criminal Procedure 1973 ('Cr.PC'), the judgment and order, dated 5.2.2003, passed by the learned Judicial Magistrate, 1st Class in C.R. Case No. 154/2002 has been challenged. The learned Judicial Magistrate, 1st Class, while dismissing the complaint filed under Section 138 of the Negotiable Instruments Act, 1881 ('the Act') by the appellant, acquitted the accused/respondent from the liability of the offence under Section 138 of the Act on the ground that the statutory notice was not served on the accused. 2. The prosecution case, in brief, may be stated as follows: On 12.10.2000, the complainant ('the appellant') entered into an agreement with the respondent for sale of his L.P. Truck No. AS-05-7644 in favour of the latter at Rs. 3,20,000. As agreed by both the parties, the purchaser was required to pay an amount of Rs. 40,000, on the date of agreement, while the remaining amount was required to be paid in installments. Accordingly on 5.11.2001, the respondent, i.e., the purchaser issued an account payee cheque bearing No. 469946, dated 5.11.2001, for Rs. 93,000 in favour of the complainant. The cheque was drawn on Lakhirni Gaolia Bank, Khangia Branch. The complainant deposited the said cheque on 5.11.01 in the Central Bank, Golaghat Branch for collection of the said amount, but the cheque was dishonoured by the bank on the ground of "insufficient fund" in the account of the drawer. Accordingly the complainant sent a notice to the accused, through his lawyer, on 6.12.2001, by registered post. As the respondent failed to pay the cheque amount in spite of expiry of the stipulated period, the appellant, as complainant, filed a complaint case under Section 138 of the Act. 3. The learned Magistrate, after taking cognizance of the offence, issued process directing appearance of the respondent/accused and in response to the said process, the respondent appeared before the trial court. On his appearance the particulars of offence under Section 138 of the Act was explained to the accused to which he pleaded not guilty and claimed to be tried. In order to bring home the guilt to the accused, the appellant examined as many as 3 witnesses, including himself and exhibited certain documents. On his appearance the particulars of offence under Section 138 of the Act was explained to the accused to which he pleaded not guilty and claimed to be tried. In order to bring home the guilt to the accused, the appellant examined as many as 3 witnesses, including himself and exhibited certain documents. At the close of the evidence of the complainant, the accused/respondent was examined under Section 313, Cr.P.C. While denying the allegations, the respondent pleaded that the cheque, issued to the complainant, was a blank cheque and that for want of money in the account, he asked the complainant not to deposit the cheque. The accused/respondent denied to have received any notice from the complainant. The defence failed to adduce any evidence in support of its plea. The learned trial Judge, after considering the evidence on record and having heard the arguments placed on behalf of the parties decided that the cheque, i.e., ext. No. 1 was issued on 5.11.2001, in favour of the complainant, towards payment of Rs. 93,600 and as such no blank cheque, as claimed by the accused, was issued. The learned trial Judge further held that the cheque was issued in discharge of debt/liability towards the sale of the truck. By the said judgment it was also decided that the cheque, issued by the accused, was dishonoured by the bank due to 'insufficient fund'. While deciding all the points in favour of the complainant, the learned trial Judge came to the finding that the notice as required by Section 138of the Act was not served on the accused person. 4. The appellant contended that the demand notice was sent through registered A/D Post on 6.12.2001 and that neither the A/D Card nor the undelivered Registered letter comes back. Therefore, prayer was made to draw presumption regarding service of notice. Referring to the provision of Section 27 of the General Clauses Act, the learned trial Judge held that the provision of Section 27 of the General Clauses Act was not applicable to the present case. Therefore, the learned Magistrate held that in the absence of service of notice there arose no cause of action in favour of the complainant. Referring to the provision of Section 27 of the General Clauses Act, the learned trial Judge held that the provision of Section 27 of the General Clauses Act was not applicable to the present case. Therefore, the learned Magistrate held that in the absence of service of notice there arose no cause of action in favour of the complainant. Accordingly, with the above observation, the learned Magistrate held that the complainant failed to prove its case against the accused beyond all reasonable doubt and as such the accused was found not guilty under Section 138 of the Act. 5. Being aggrieved by the said judgment and order of acquittal the complainant/appellant has come up with this appeal for setting aside the impugned judgment and order passed by the learned trial Judge. The appellant contended that the learned trial Judge, in spite of sufficient evidence on record against the accused/respondents, committed illegality by acquitting the respondent from the liability of Section 138 of the Act by holding that the provision of Section 27 of the General Clauses Act was not applicable. It is also contended that the learned Magistrate failed to apply his mind and to exercise the jurisdiction in deciding the case aforesaid. 6. I have heard Mr. T.J. Mahanta, learned Counsel appearing for the appellant and Mr. HRA Choudhury, learned senior counsel assisted by Mrs. A. Begum, learned Counsel for the respondent. Mr. Mahanta, learned Counsel for the appellant, drawing my attention to the evidence on record and the postal receipt, i.e., Ext. No. 4 submitted that the notice, demanding the payment in respect of the money mentioned in the dishonoured cheque, issued by the respondent in favour of the complainant/appellant, was issued on 6.12.2001 by registered post indicating the correct name and address of the respondent. It is also contended that as neither the postal A/D Card, nor the undelivered registered letter, with its envelope was received back, the learned Magistrate should have taken note of the matter and accordingly drawn presumption under the provision of Section27 of the General Clauses Act and Section 114 of the Evidence Act as to service of the notice. It is also contended that as neither the postal A/D Card, nor the undelivered registered letter, with its envelope was received back, the learned Magistrate should have taken note of the matter and accordingly drawn presumption under the provision of Section27 of the General Clauses Act and Section 114 of the Evidence Act as to service of the notice. It is contended, on behalf of the appellant that the learned Magistrate committed error of law by failing to draw presumption regarding service of notice and, thus, caused grave miscarriage of justice by holding that the provision of Section 27 of the General Clauses Act was not applicable to a case, filed under Section 138 of the Act. 7. The learned senior counsel, in reply to the said contention, submitted that the learned trial Judge committed no illegality by holding that there was no cause of action in favour of the appellant. 8. In the light of the above arguments, carefully perusing the evidence on record I find that the learned trial Judge, after detailed discussion of the evidence on record held that the respondent (accused) had issued a cheque in favour of the appellant on 5.11.2001 in discharge of the debt/liability amounting to Rs. 93,600 and that the said cheque, having been deposited with the bank on 5.11.2001, was dishonoured due to 'insufficient fund' in the account of the drawer. But the accused was acquitted only on the ground that the statutory notice, which was required to be served under Section 138(b) of the Act, was not proved to be served. In the complaint petition the complainant clearly stated as follows: That after dishonour of the said cheque the complainant appointed his attorney and instructed to issue a pleader's Notice and the same was sent through Registered Post vide receipt No. REG.AD. 1749 dated 6.12.2001 from Golaghat H.O., of Postal department. That till this date the postal acknowledgement card nor the undelivered Registered Letter has still not returned. So, it can be presumed that the Registered Letter along with A/D has been received by the accused as per General Clause Act. 9. By making the said statement, in the complaint petition, the complainant exhibited the postal receipt also as Ext. No. 4. From the said Ext. 4, it appears that the notice was issued by registered post on 6.12.2001 and the case was filed on 18.01.2002. 9. By making the said statement, in the complaint petition, the complainant exhibited the postal receipt also as Ext. No. 4. From the said Ext. 4, it appears that the notice was issued by registered post on 6.12.2001 and the case was filed on 18.01.2002. The plea of the accused was that he did not receive the notice. The Bank had returned the cheque on 20.11.2001. In view of the above, the short question involved in this appeal is as to whether Section 27 of the General Clauses Act is applicable in a case under Section 138 of the Act and whether presumption of service can be drawn under the said provision of Section 27 of the General Clauses Act. 10. The learned Magistrate, while holding that the provision of Section 27 of the General Clauses Act is not applicable, observed as follows: The provision of the Section 138(b) of the Act significantly does not contemplated about mode of service of notice, not even by ordinary or registered post. It only provides that the notice should be in writing. Therefore, under Section 138(b) of Act the registered post of notice is not essential on the other hand, the Section 27 of the General Clauses Act is applicable where a document is required to be sent and served by post. Even if it is presumed that the notice is served upon the accused it is not possible to determine the fifteen days period of time to make payment as per the notice which is an essential ingredient for the Section 138(c) of Act. In view of the above, the Section 27 of the General Clauses Act is not applicable to the present case.... (sic) 11. Relying on the decision held in the case of C.C. Alavi Haji v. Palapetty Muhammed (2007) 6 SCC 555 , the learned Counsel for the appellant submits that the learned trial Judge misread the provisions of Section 138(b) of the N.I. Act and the Section 27of the general clauses Act. He submitted that the provision of Section 27 of the General Clauses Act is applicable in a case under Section 138 of Act. The question regarding service of notice in terms of Clause (b) of the proviso to section (sic) of the Act came up before the three Judges' Bench. He submitted that the provision of Section 27 of the General Clauses Act is applicable in a case under Section 138 of Act. The question regarding service of notice in terms of Clause (b) of the proviso to section (sic) of the Act came up before the three Judges' Bench. In the above referred case the hon'ble Apex Court discussed the object of the Act and observed that while construing the provision of the Act, the object of the legislation has to be borne in mind. Section 138 of the Act was enacted to punish those unscrupulous persons who purported to discharge their liability by issuing cheques without really intending to do so. The purpose of introduction of the chapter XVII of the Act was intended to create an atmosphere of faith and reliance on banking system by discouraging people from not honouring their commitments by way of payment through cheques. In the above referred case the hon'ble Apex Court observed: It must be borne in mind that the court should not adopt an interpretation which helps a dishonest evader and clips an honest payee as that would defeat the very legislative measure. The words in Clause (b) of the proviso to Section 138 of the Act show that the 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. The hon'ble Apex Court observed that though Section 138 of the Act does not require that the notice should be given only by "post", yet in a case where the sender has despatched the notice by post with correct address written on it, the principle incorporated in Section 27 of the General Clauses Act, 1897 ('the GC Act') could profitably be imported in such a case. In the case of D. Vinod Shiuappa v. Nanda Belliappa (2006) 6 SCC 456 the hon'ble Apex Court elaborately dealt with the matter regarding service of notice and observed "once the payee of the cheque issues notice to the drawer of the cheque, the cause of action to file a complaint arises on the expiry of the period prescribed for payment by the drawer of the cheque." In the case of C.C. Alavi Haji (supra) the hon'ble Apex Court held "It is, thus, trite to say that where the payee despatches the notice by registered pest with correct address of the drawer of the cheque, the principle incorporated in Section 27 of the GC Act would be attracted; the requirement of Clause (b) of proviso to Section 138 of the Act stands complied with and cause of action to file a complaint arises on the expiry of the period prescribed in Clause (c) of the said proviso for payment by the drawer of the cheque. Nevertheless, it would be without prejudice to the right of the drawer to show that he had no knowledge that the notice was brought to his address." The hon'ble Apex Court further held "Section 114 enables the court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case." As in the present case the notice was sent by post Section 114 enabled the court to presume that, in the common course of natural events, the notice was delivered at the address of the addressee. That apart the presumption which can be drawn under Section 27 of the GC Act much stronger. Further, Section 114 of the Evidence Act refers to a general presumption, but Section 27 refers to a specific presumption. The provisions of Section 27 of the GC Act reads as follows: 27. Meaning of service by post. That apart the presumption which can be drawn under Section 27 of the GC Act much stronger. Further, Section 114 of the Evidence Act refers to a general presumption, but Section 27 refers to a specific presumption. The provisions of Section 27 of the GC Act reads as follows: 27. Meaning of service by post. - Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression 'serve' or either of the expression 'give' or 'send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. The hon'ble Apex Court further observed "as noticed above, the entire purpose of requiring a notice is to give an opportunity to the drawer to pay the cheque amount within 15 days of service of notice and thereby free himself from the penal consequences of Section 138." 12. Any drawer, who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect, of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons from the court along with the copy of the complaint under Section138 of the Act, can not obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the GC Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran case if the "giving of notice" in the context of Clause (b) of the proviso was the same as the "receipt of notice" a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act. 13. In view of the above decision and the principle laid down by the hon'ble Apex Court the provision of Section 27 of the General Clauses Act is applicable in the case filed under Section 138of the Act and, therefore, the learned Trial Judge committed error of law by refusing to take presumption of service of notice under the provision of Section 27 of the General Clauses Act. As observed by the hon'ble Apex Court, even if the respondent/accused had not received the notice, he, after receipt of the summons from the court could have made payment of the cheque amount. That apart, the learned trial Judge committed error of law by holding that Section 27 of the General Clauses Act is applicable in respect of a document which is required to be sent and served by post and, thus, it was held that as the Section 138 of the Act did not mention about the requirement of service of notice by post. The provision of Section 27 of the General Clauses Act was not attracted. Section 138 of the Act does not mention anything about the specific mode of service of notice. Therefore, there was no bar in issuing the notice by registered A/D post. As the notice in the present case was sent by registered A/D post, there was no difficulty in applying the provision of Section 27 of the General Clauses Act. 14. In the light of the above discussion, I am of the opinion that the learned trial Judge committed gross error by holding that Section 27 of the General Clauses Act was not applicable. 14. In the light of the above discussion, I am of the opinion that the learned trial Judge committed gross error by holding that Section 27 of the General Clauses Act was not applicable. In view of the decision and the principle laid down by the hon'ble Apex Court in the case of C.C. Alavia Haji (supra), as neither the A/D Card nor the undelivered registered notice along with its envelope was received back, it could be safely presumed, under the provision of Section 27 of the General Clauses Act as well as Section 114 of the Evidence Act, that the notice was issued and served on the drawer of the cheque, i.e., the respondent. 15. For the reasons aforementioned, I find sufficient merit in this appeal requiring interference with the impugned judgment and order aforesaid. Accordingly the appeal is allowed and the judgment and order dated 5.2.2003 passed in C.R. Case No. 154/2002 is set aside. The case is remitted back, directing the learned trial Judge to dispose of the same within a period of 2(two) months from the date of receipt of the record, after giving opportunity to both the parties for submitting their arguments. The Registry shall send back the lower court case record along with a copy of this judgment immediately. Appeal allowed