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Himachal Pradesh High Court · body

2016 DIGILAW 1741 (HP)

Shakun Holding Pvt. Ltd. v. Uma Dutt

2016-08-22

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. Judgment dated 13.03.2007 passed by learned Additional Sessions Judge (Presiding Officer, Fast Track Court), Solan in a case No.10 FT/10 of 2006 is under challenge in this appeal. The appellant is the complainant. He is aggrieved by the reversal of the judgment passed by learned Chief Judicial Magistrate, Solan in complain No. 131/3 of 2001 whereby the respondent herein (accused) was convicted under Section 138 of the Negotiable Instruments Act and sentenced to undergo rigorous imprisonment for six months and also to pay Rs.15,000/- as fine. 2. Learned Lower Appellate Court has, however, quashed the judgment passed by the trial Court and has acquitted the accused of the accusation put to him under Section 138 of the Act. 3. The challenge to the impugned judgment is on the grounds inter alia that in view of the evidence oral as well as documentary produced to establish the service of the legal notice Ext. C-4 upon the accused, the findings to the contrary are erroneous hence not legally sustainable. The accused allegedly was in the knowledge of the fact that the notice Ext. C-4 was received on his behalf by his father, Mathu Ram. The own admission of the accused that he has received the notice sent to him under certificate of posting is erroneously ignored. 4. Mr. Suneet Goel, Advocate learned counsel representing the complainant-appellant while drawing the attention of this Court to the evidence i.e. notice Ext. C-4 and the postal receipts Ex.C-5 and Ex.C-6 has urged that the accused was duly served with a notice and the findings to the contrary are without any basis. According to Mr. Suneet Goel, against a sum of rupees two lakhs given as loan by the complainant to the accused, the later has failed to repay the entire loan amount as agreed upon. He allegedly defaulted in the payment of the installments and it is on account of that cheque Ext. C-2 was presented for encashment. The same, when presented for encashment, however, got bounced for want of sufficient funds and as such returned to the payee i.e. the complainant vide memo Ext. C-3. Therefore, a case is stated to be made out against the accused and as such according to Mr. Suneet Goel he was rightly convicted and sentenced by the Trial Court. 5. On the other hand, Mr. C-3. Therefore, a case is stated to be made out against the accused and as such according to Mr. Suneet Goel he was rightly convicted and sentenced by the Trial Court. 5. On the other hand, Mr. Kulwant Katoch, Advocate learned defence counsel has argued with all vehemence that against a sum of Rs. 1,75,000/- availed as loan by the accused, a sum of Rs. 2,09,777/- stands paid as per documentary evidence available on record. Also that, a sum of Rs. 25,000/- over and above this amount has also been paid by the accused to the complainant. Also that, for want of cogent and reliable evidence to establish the service of notice Ext. C-4 upon the accused, no findings of conviction could have been recorded against him. Learned lower appellate Court is stated to have rightly acquitted the accused from the accusation under Section 138 of the Negotiable Instruments Act. 6. On analyzing the rival submissions and also the evidence available on record, there is no dispute qua availing facility of loan by the accused from the complainant. The complainant, however, has failed to produce legal and acceptable evidence to establish that a sum of Rs.2,00,000/- (rupees two lakhs) was advanced as loan to the accused. The averments in the legal notice Ext. C-4 and the complaint to this effect cannot be believed to be true for want of some independent evidence lending corroboration thereto. The version of the accused that he had availed the facility of loan to the tune of Rs.1,75,000/- from the complainant is, therefore, to be believed to be true and correct. No evidence has been produced by the complainant qua the manner in which the amount of loan was agreed to be recovered and, in how much period. Anyhow, the receipts Ext. D-1 to D-12 reveal that upto 18.05.2001, a sum of Rs. 1,33,733/- was realized by the complainant from the accused towards part payment of the loan amount. The certificate Ext. D-13 reveals that FDR No.1102 dated 07.10.1999 deposited with complainant was matured on 7.10.2002 in the sum of Rs.76,044. This amount was also realized and credited in the loan account of the accused by the complainant. It being so, against a sum of Rs. 1,75,000/- a total sum of Rs. 2,09,777/- stands paid by the accused as on 7.10.2002 to the complainant. This amount was also realized and credited in the loan account of the accused by the complainant. It being so, against a sum of Rs. 1,75,000/- a total sum of Rs. 2,09,777/- stands paid by the accused as on 7.10.2002 to the complainant. As already said, there is no evidence qua the manner in which the loan amount was agreed to be recovered, therefore, no doubt, the date when the complaint was filed, total amount was not paid by the accused, however, it is by 7.10.2002 i.e. during the pendency of the complaint, a sum of Rs. 2,09,777/- stood paid to the accused by the complainant. Learned trial Judge has not appreciated this aspect of the matter in its right perspective. 7. The core point needs adjudication is qua the service of legal notice Ext. C-4 upon the accused. According to Mr. Suneet Goel, learned Counsel, the postal receipts Ext. C-5 & C-6 establish the service of the notice upon the accused through his father Mathu Ram. It is, however, difficult to believe so for the reason that these are receipts and at the most substantiate the case of the complainant qua issuance of legal notice to the accused through registered AD post and also under certificate of posting. It is difficult to believe on the basis thereof that the notice was received by the accused or his father Mathu Ram. In order to prove the delivery of the notice, some-one should have been examined from the Post Office concerned. It is only in that eventuality, it could have been said that the notice so sent through registered post and under certificate of posting was not received back ‘undelivered’ or ‘unexecuted’. 8. Above all, the service of notice as envisaged under Section 138 of the Act is not an idle formality but there must be cogent and reliable evidence to show that the notice was received by the accused. It is held so by the Apex Court in Sharanayya versus Chandrakanth, 2014(3) RCR (Criminal) 929. Relevant portion of the judgment reads as follows: “7. The appellate court while acquitting the appellant has held that the complainant had not been able to prove that the notice was validly served on the appellant. That is one of the ingredients which constitute the offence. The High Court termed the said defect in the case of complainant to be technical in nature. The appellate court while acquitting the appellant has held that the complainant had not been able to prove that the notice was validly served on the appellant. That is one of the ingredients which constitute the offence. The High Court termed the said defect in the case of complainant to be technical in nature. We are of the opinion that service of notice is one of the ingredients for constituting the offence and therefore, the High Court erred in terming the same to be of technical nature. On this ground alone, the order of the High Court cannot be allowed to stand.” 9. This Court in a recent judgment dated 9th May, 2016 in Criminal Appeal No.503 of 2007, titled Tirath Ram versus Parshotam Ram, while taking similar view of the matter has held as under: “11. The only question which has engaged the attention of this Court is as to whether in the given facts and circumstances and also the evidence on record, the accused-respondent can be said to be served legally and validly with the notice Ext.CD or not. The answer to this poser in all fairness and ends of justice would be in negative for the reasons that it cannot be believed by any stretch of imagination that this document sent to the accused through registered AD post and also under certificate of posting was actually received by him. 12. The bare perusal of Section 138 of the Act reveals that the legislature in its wisdom has enacted the same to punish unscrupulous drawers of cheques who, though pose to discharge their liability by issuing cheque, however, without any intention to do so. Therefore, apart from civil liability, criminal liability is sought to be imposed upon such unscrupulous drawers of cheques by the provisions contained under Section 138 of the Act. At the same time with a view to avert unnecessary prosecution of an honest drawer of the cheque and with a view to give an opportunity to him to pay the amount under the cheque and avoid his prosecution under the Section ibid, the prosecution under this Section has been made subject to fulfillment of certain conditions stipulated in the proviso to Section 138 ibid. Under Clause (b) of the proviso the payee or the holder of the cheque is required to serve the drawer with a written notice within a period of 30 days from the date he received the information qua the cheque returned to him by his banker unpaid. Similarly, as per Clause (c) a fifteen days time from the date of receipt for the notice is required to the drawer of the cheque to make the payment and the complaint will only be filed in case the drawer fails to make the payment within the stipulated period. The object is pure and simple to avoid unnecessary hardship and prosecution of an honest drawer. Therefore, legal and valid service of the notice upon the drawer before filing the complaint is a mandatory requirement.” 10. In view of the above there can not be any other and further possible view of the matter as already taken by learned lower appellate Court. As a matter of fact, for want of proof of service of notice upon the accused, no case against him under Section 138 of Negotiable Instruments Act can be said to have been made out. True it is that on the date when the cheque was bounced and the complaint filed the entire loan amount was not paid to the complainant. The same i.e. Rs.2,09,777/- against Rs.1,75,000/-, however, stands paid during the pendency of the complaint by the accused to the complainant. The object of the Act is to ensure the speedy recovery of the amount due to the payee against the drawer, therefore, when during the pendency of the complaint, the amount stood paid to the complainant, no useful purpose could have been served by putting the accused behind the bar. Learned lower appellate Court has, therefore, rightly appreciated the given facts and circumstances of this case and also the evidence available on record and has not committed any illegality and irregularity while acquitting the accused from the accusation under Section 138 of the Act. 11. For all the reasons hereinabove, the present appeal fails and the same is accordingly dismissed. The personal bond furnished by the accused shall stand cancelled and the surety discharged. Pending applications, if any shall also stand disposed of.