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2011 DIGILAW 1018 (JHR)

Santosh Kumar Saw v. State Of Jharkhand

2011-11-21

H.C.MISHRA

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JUDGMENT : Harish Chandra Mishra, J. Heard learned Counsel for both sides. This appeal is directed against the judgment of acquittal passed on 10.6.2008 by Sri Debasis Mahapatra, learned Judicial Magistrate, 1st class, Dhanbad in complaint case No. 1529 of 2005 corresponding to T.R. No. 1003 of 2008, whereby, in a proceeding u/s 138 of the Negotiable Instruments Act (hereinafter referred to as the N.I. Act), the Court below has acquitted the respondent No. 2 on the ground that the appellant complainant had failed to prove that the demand notice required under the proviso to Section 138 of the N.I. Act was, in fact, sent to the accused. The case of the complainant, shorn of unnecessary details, is that the respondent No. 2 (accused) had requested for a friendly loan of Rs. 80,000/- from the appellant-complainant which was promised to be paid within four months, pursuant whereto the money was advanced by the complainant to the accused. Ultimately, the accused issued an A/C payee cheque bearing No. 970132 dated 28.7.2005 for a sum of Rs. 80,000/-, drawn on Punjab National Bank, Jharia in favour of the complainant. The cheque in question was presented by the complainant in Bank of India on 28.7.2005 itself and the same was returned with the remarks "Exceeds arrangement" and thereby, the said cheque was dishonoured. When the complainant informed the accused, the accused requested the complainant to re-deposit the cheque and, accordingly, the cheque was again deposited in the Bank on 19.8.2005, but this time also, the cheque in question was dishonoured on the same ground and information was given to the complainant on 22.8.2005. Upon coming to know about the dishonour of the cheque, the complainant got a legal notice issued on 5.9.2005 through his lawyer and as even after the notice, the accused respondent No. 2 failed to pay the cheque within the period of 15 days. The complaint was filed on 30.9.2005. 2. Evidences were adduced by both the sides before the Court below in their favour and on appraisal of the evidence, brought on record, the Court below vide judgment dated 10.6.2008 acquitted the accused of the charge, mainly on the ground that the complainant had failed to prove that the demand notice was in fact sent to the accused. 3. 2. Evidences were adduced by both the sides before the Court below in their favour and on appraisal of the evidence, brought on record, the Court below vide judgment dated 10.6.2008 acquitted the accused of the charge, mainly on the ground that the complainant had failed to prove that the demand notice was in fact sent to the accused. 3. Learned Counsel for the appellant-complainant has submitted that the impugned judgment passed by the Court below is absolutely illegal, inasmuch as there is a presumption against the drawer of the cheque, once the issuance of the cheque is proved in the Court. Learned Counsel for the appellant-complainant has further submitted that the complainant has proved the complaint petition, the cheque and the demand notice in the Court below and as such, it could not be said that no demand notice was issued to the complainant. 4. Learned Counsel for the appellant-complainant has placed reliance upon a decision of the Hon'ble Supreme Court of India in the case of K. Bhaskaran Vs. Sankaran Vaidhyan Balan and Another, (1999) 7 SCC 510 , wherein, it has been held that when the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the N.I. Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Further, Section 139 of the Act enjoins on the Court to presume that the holder of the cheque received it for the discharge of any debt or liability. The burden is on the accused to rebut the aforesaid presumption. 5. Learned Counsel for the appellant-complainant submitted that the accused failed to rebut the said presumption and, as such, the Court below has wrongly acquitted the accused. 6. I have gone through the decision, cited by the learned Counsel for the appellant-complainant and it is manifest from the bare reading of the judgment that this is not at all applicable to the facts of the present case, inasmuch as the said judgment of the Hon'ble Supreme Court nowhere speaks about the demand notice which was required to be issued to the accused under the proviso to Section 138 of the N.I. Act. Needless to say that there is no presumption as regards this demand notice either u/s 118 or u/s 138 of the N.I. Act. Needless to say that there is no presumption as regards this demand notice either u/s 118 or u/s 138 of the N.I. Act. Consequently, the reliance placed by learned Counsel on this decision is absolutely misdirected. 7. Learned Counsel for the respondent No. 2-accused, on the other hand, submits that there is no illegality in the judgment of the Court below, inasmuch as, the complainant had failed to establish that the notice was issued to him. Though, the complainant had proved the legal notice in the Court below which is marked as Exhibit 2, but nothing was brought on record to show that the said notice was ever issued or sent to the accused. 8. In this connection, learned Counsel has placed reliance upon the decision of the Hon'ble Supreme Court of India in the case of Sarav Investment and Financial Consultants Pvt. Ltd. and Another Vs. Llyods Register of Shipping Indian Office Staff Provident Fund and Another, (2008) CriLJ 377, wherein, it has been laid down as follows: 18. That the notice was only required to be despatched. Its contents were required to be communicated. Communication to the appellant about the fact of dishonouring of the cheques and calling upon him to pay the amount within 15 days is imperative in character. It is not a case, where, actual communication was not necessary. Service of notice is a part of cause of action for lodging the complaint. 9. I have also gone through the evidence brought on record on the point of service of the demand notice upon the accused. From the evidence of the C.W. 1 the complainant himself, it appears that the complainant has only proved the legal notice which was marked as Exhibit 2. The complainant has not deposed anything in his deposition about the mode as to how the legal notice was sent to the accused or whether the said notice was actually sent and received by the accused. In the complaint petition it is only mentioned that the photocopy of the postal receipt is annexed, but there is no averment in the complaint petition that the notice was sent through post. No postal receipt has been proved and marked as exhibit. 10. In the complaint petition it is only mentioned that the photocopy of the postal receipt is annexed, but there is no averment in the complaint petition that the notice was sent through post. No postal receipt has been proved and marked as exhibit. 10. Proviso appended to Section 138 of the N.I. Act contains a non obstinate clause that nothing contained in the main penal provision shall apply unless the requirements, including that of demand notice are complied with. Consequently, I am of the considered view that the case is fully covered by the decision of the Hon'ble Supreme Court in the case of Sarav Investment & Financial Consultancy Private Limited (supra) and the complainant has failed to prove that the notice was ever sent to the accused. 11. In this view of the matter, the Court below has rightly come to the conclusion that the complainant has failed to prove that the notice was actually sent to the accused and has acquitted the accused of the charge u/s 138 of the N.I. Act. In view of the aforementioned discussions, I do not find any illegality in the impugned judgment of acquittal. There is no merit in this appeal, which is, hereby, dismissed.