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2012 DIGILAW 1831 (BOM)

Shaikh Iqbal Muzawar v. Abitalib Malik

2012-09-27

A.P.LAVANDE

body2012
Judgment Heard Mr. Vaz, learned Counsel for the appellant and Mr. Menezes, learned Counsel for the respondent. 2. By this appeal, the appellant takes exception to the judgment and order dated 26/03/2010 passed by the Judicial Magistrate, First Class, Panaji in OA Case No.945/2008/B acquitting the respondent for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 ('the Act' for short). 3. The appellant is the complainant and the respondent is the accused in the above case. The parties shall hereinafter be referred to as per their status before the Trial Court. 4. The complainant filed the above criminal case against the accused for dishonour of cheque dated 21/02/2008 for an amount of Rs.67,000/-drawn on ICICI Bank which according to the complainant, was issued by the accused towards repayment of the loan taken by the accused. The cheque was presented by the complainant for payment. The same was dishonoured on 11/06/2008 with an endorsement 'insufficient funds'. Thereafter, the complainant issued the notice dated 01/07/2008 by Registered Post A.D. which according to the complainant, was refused by the accused although the accused was intimated about the said notice. Since the accused did not make payment, the complainant filed the above criminal case and examined himself in support of his case. The defence of the accused was of total denial. He also pleaded that notice sent by the complainant under Section 138 of the Act, was not addressed on the correct address of the accused and he had not received the same. The statement of the accused under Section 313 of Cr.P.C., was recorded. The accused also filed written statement in which he stated that he had borrowed sum of Rs.30,000/-in the month of February 2008 and repaid the same with interest in 3 instalments of Rs.12,000/-, Rs.10,000/-and Rs.10,000/-respectively. The accused examined DW1 Ritesh Rane. In the course of evidence of the complainant, the complainant relied upon the notice with A. D. card issued to the accused and endorsement of the postal department (exhibit 22 collectively). The complainant also placed on record agreement dated 13/02/2008 entered into between the complainant and the accused pursuant which an amount of Rs.67,000/-was advanced to the accused. 5. In the course of evidence of the complainant, the complainant relied upon the notice with A. D. card issued to the accused and endorsement of the postal department (exhibit 22 collectively). The complainant also placed on record agreement dated 13/02/2008 entered into between the complainant and the accused pursuant which an amount of Rs.67,000/-was advanced to the accused. 5. Learned Magistrate recorded the order of acquittal primarily on the following two grounds: (i) The complainant had stated that cheque bearing no.512418 was issued but the same was actually bearing no.105137 which number was also found on the cheque return memo. (ii) The notice issued by the complainant under Section 138 of the Act to the accused, was not on the correct address. 6. Mr. Vaz, learned Counsel appearing for the appellant / complainant submitted that both the grounds on which learned Magistrate has acquitted the accused are untenable in law. According to Mr. Vaz, both the numbers i.e. 512418 and 105137 appear on the cheque and the complainant being a layman, was not expected to mention the actual number of the cheque i.e. 105137 and in any case, the accused had not disputed his signature on the cheque and, therefore, learned Magistrate could not have acquitted the accused on this ground. The stamp on the envelope in which notice was issued, clearly discloses that the notice was unclaimed and, therefore, there is presumption of service of notice on the accused. Mr. Vaz further submitted that the accused was very much aware of the notice issued by the complainant and in spite of intimation having been given to him, the accused chose not to claim the same with a view to avoid liability in respect of the cheque. Mr. Vaz placed reliance upon the judgment of the Apex Court in the case of P. Venugopal Vs. Madan P. Sarathi; (2009)1 SCC 492 ). 7. Per contra, Mr. Menezes, learned Counsel appearing for the respondent/ accused supported the impugned judgment and order, and submitted that learned Magistrate was justified in acquitting the respondent / accused for the offence punishable under Section 138 of the Act on the above referred two grounds. Mr. Menezes further submitted that the complainant in his evidence had not stated that the notice was issued at the correct address. Mr. Menezes further submitted that the complainant in his evidence had not stated that the notice was issued at the correct address. Moreover, the agreement relied upon by the complainant clearly discloses that the address of the accused was mentioned as House No.465, Bhatan, Caranzalem, Ilhas, Goa and notice was issued at the address 'Stall No.1, Panaji Municipal Market, near Everest Hotel, Panaji, Goa'. Mr. Menezes further submitted that the evidence of DW1 Ritesh Rane who was examined in defence of the accused, clearly suggests that Stall no.1 was not owned by the accused, but it was owned by Mehboob Muzawar. Learned Counsel, therefore, submitted that the acquittal recorded by learned Magistrate, cannot be faulted since the view taken by learned Magistrate, is a probable view and having regard to the settled principles of law, no interference is warranted with the impugned judgment and order passed by learned Magistrate. In support of his submissions, Mr. Menezes relied upon the following three judgments: (i) V. Rajakumari Vs. P. Subbarama Naidu and another; AIR 2005 SC 109 . (ii) K. Bhaskaran Vs. Sankaran Vaidhyan Balan and another; AIR 1999 SC 3762 . (iii) Suresh Kumar Vs. Sasi; 2003 (2) KLT 367 . 8. I have carefully considered the rival submissions, perused the record and the judgments relied upon. 9. As stated above, learned Magistrate has recorded order of acquittal on the above referred two grounds. Insofar as first ground is concerned, I am of the considered opinion that learned Magistrate was not justified in recording the finding in favour of the accused simply on the ground that the cheque number mentioned on the cheque, was not the real number. Bare perusal of the cheque discloses that the cheque bears both the numbers i.e. 512418 and 105137. The complainant being a layman, could not be expected to know what is the real cheque number. Moreover, it is not the case of the accused that the cheque was not signed by him. Therefore, in my view, the finding given by learned Magistrate in favour of the accused on this count, is unsustainable in law. 10. Insofar the second ground is concerned, perusal of the record discloses that the complainant in his evidence, has not stated that he had given notice on the correct address. Therefore, in my view, the finding given by learned Magistrate in favour of the accused on this count, is unsustainable in law. 10. Insofar the second ground is concerned, perusal of the record discloses that the complainant in his evidence, has not stated that he had given notice on the correct address. The complainant has not even mentioned as to on what basis he came to the conclusion that the address mentioned on the envelope, was the address of the accused. Moreover, as rightly held by learned Magistrate, even in the agreement dated February, 2008 entered into between the complainant and the accused, the address mentioned was 465, Bhatan, Caranzalem, Ilhas, Goa. In addition, DW1 Ritesh Rane, the police constable who was examined by the accused, deposed that when he had gone to serve the summons on the accused at the address mentioned in the cause title which corresponds to the address on the envelope, he did not find the accused at Stall no.1 and according to him, stall no.1 was owned by Mehboob Muzawar. No doubt his evidence discloses that thereafter, the accused had come to the police station; but this can be easily explained inasmuch as after having come to know that police had come to serve him in the Municipal Market, it was quite natural for the accused to go to the police station to enquire as to why police had come and it was quite natural for the DW1 Ritesh Rane to serve the summons on the accused in the police station. This fact instead of supporting the complainant, supports the version of the accused that notice under Section 138 of the Act, was not addressed on the correct address and he did not receive the notice. 11. Mr. Menezes is justified in placing reliance upon the judgment in the case of of K. Bhaskaran (supra) in which the Apex Court has held that the principles incorporated under Section 27 of the General Clauses Act regarding service of notice can profitably be imported in a case where sender has dispatched the notice by post with the correct address written on it. It is only when the correct address is mentioned then it shall be deemed to have been served on the sendee unless the accused proves that it was not really served or that he was not responsible for non-service. It is only when the correct address is mentioned then it shall be deemed to have been served on the sendee unless the accused proves that it was not really served or that he was not responsible for non-service. In the case of V. Raja Kumari (supra), the Apex Court made similar observations after placing reliance upon the earlier judgment of the Apex Court in the case of K. Bhaskaran (supra). In the case of Suresh Kumar (supra), learned Single Judge of Kerala High Court has held that Section 27 of General Clauses Act is attracted only if the notice is not served on the correct address and once it is proved that notice was sent on the correct address, the burden shifts on the accused to prove that it was not really served on him or that he was not responsible for non-service. 12. In view of the consistent ratio laid down by the Apex Court which is clearly applicable in the present case, in my view, the finding given by learned Magistrate insofar as second point is concerned, cannot be faulted. It is well settled that interference in appeal against the acquittal is warranted only if the findings given by learned trial Court are patently unsustainable or illegal and in case the view taken by the trial Court is probable view, the appellate Court should not to interfere solely on the ground that another view is possible. Applying this test, in my view, no case is made out by the appellant/ complainant for interference with the order of acquittal passed by learned Magistrate. 13. Insofar as the judgment in the case of P. Venugopal (supra) relied upon by Mr. Vaz is concerned, in my view, the same does not advance the case of the complainant. In the said case, the Apex Court has held that proof of service of notice under Section 138 is a question of fact. In the said case, the Magistrate accepted the evidence of Postman, who had served notice on the accused and rejected the contrary opinion of the handwriting expert. The facts in the said case being entirely different, in my view, the ratio of the said judgment, does not help the complainant. 14. In the result, therefore, I do not find any merit in the appeal. Consequently, the appeal stands dismissed. The bail bond executed by the respondent, stands discharged.