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Himachal Pradesh High Court · body

2016 DIGILAW 2315 (HP)

Ram Chand v. Sunita Abrol

2016-11-01

SANDEEP SHARMA

body2016
JUDGMENT : Sandeep Sharma, J. Instant Criminal Revision Petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure, is directed against the judgment dated 4.10.2010, passed by learned Sessions Judge, Bilaspur, District Bilaspur, H.P. in Criminal Appeal No.1 of 2008, reversing the judgment of conviction passed by learned Judicial Magistrate 1st Class Court No.2, Ghumarwin, District Bilaspur, H.P. in case No.40/2 of 2005/1999, whereby the respondent (hereinafter referred to as the accused) was held guilty of having committed offence punishable under Section 138 of the Negotiable Instruments Act and accordingly convicted and sentenced the accused to undergo simple imprisonment for the period of three months and to pay a fine of Rs.2000/- and in default of payment of fine, to undergo simple imprisonment for a period of one month. The learned trial Court held the complainant entitled to compensation to the tune of Rs.80,000/- to be paid by the accused. 2. Briefly stated facts of the case as emerged from the record are that the petitioner (hereinafter referred to as the complainant) filed complaint under Section 138 of the Negotiable Instruments Act ( hereinafter referred to as the Act) before the learned trial Court stating therein that the accused had borrowed a sum of Rs. 40,000/- from him as loan on 12.5.1998 and agreed to return the same within a period of three months alongwith interest, but despite several requests having been made by the complainant, accused failed to repay the aforesaid amount and finally the accused issued a cheque No.0936994, dated 12.10.1998 amounting to Rs. 40,000/- drawn on H.P. State Co-operative Bank Limited branch Office at Ghumarwin, in favour of the complainant, which on presentation in the bank by the complainant on 27.2.1999, was returned by the bank with the endorsement “insufficient funds”. Complainant again presented the cheque for payment in the bank on 12.4.1999, however fact remains that same was again returned to the complainant with the remarks “insufficient funds” in the account of the accused. Complainant again presented the cheque for payment in the bank on 12.4.1999, however fact remains that same was again returned to the complainant with the remarks “insufficient funds” in the account of the accused. After receiving the aforesaid information from the bank, complainant got legal notice issued under Section 138 of the Act to the accused calling upon him to make the payment of the cheque amount within a period of 7 days from the receipt of the notice, but the accused failed to make the payment of the said cheque, as a result of which, complainant was compelled to file the complaint under Section 138 of the Act. 3. The learned trial Court on the basis of the evidence adduced on record, found accused guilty of having committed offence punishable under Section 138 of the Act and vide impugned judgment/order dated 29.12.2007/31.12.2007 convicted and sentenced the accused, as per the description given hereinabove. 4. Accused being aggrieved and dissatisfied with the impugned judgment of conviction and order of sentence passed by learned trial Court, filed an appeal under Section 374 of the Code of Criminal Procedure before the Court of learned Sessions Judge, Bilaspur, which came to be registered as Criminal Appeal No.1 of 2008. The learned Sessions Judge, vide impugned judgment dated 4.10.2010, accepted the appeal preferred by the accused and set-aside the judgment of conviction recorded by learned trial Court. Hence, in the aforesaid background, complainant approached this Court by way of instant Criminal Revision Petition, praying therein for quashing and setting-aside the impugned judgment dated 4.10.2010, passed by learned Sessions Judge, Bilaspur, H.P. 5. Mr. Umesh Kanwar, learned counsel representing the complainant, vehemently argued that the impugned judgment, passed by learned Sessions Judge, Bilaspur is not sustainable as the same is not based upon the correct appreciation of the evidence adduced on record by the complainant as well as law on the point and as such, same deserve to be quashed and set-aside. Mr. Kanwar, further contended that lower Appellate Court while accepting the appeal has miserably failed to appreciate the cogent and convincing evidence adduced on record by the complainant in its right perspective, as a result of which, great prejudice has been caused to the complainant. He further contended that complainant successfully proved on record by leading cogent and convincing evidence that the accused issued a cheque amounting to Rs. He further contended that complainant successfully proved on record by leading cogent and convincing evidence that the accused issued a cheque amounting to Rs. 40,000/- in favour of the complainant, which was dishonoured on account of “insufficient funds” in the account of the accused. While referring to the judgment passed by learned Sessions Judge, Mr. Kanwar, strenuously argued that bare perusal of the judgment suggests that learned Sessions Judge has not applied its mind while rejecting the complaint by holding that the complainant presented the cheque with the bank after expiry of six months. In this regard, Mr. Kanwar, specifically invited the attention of this Court to Section 25 of the Act, to demonstrate that since on 11.4.1999 there was holiday being Sunday, cheque could only presented on 12.4.1999. Mr. Kanwar, further contended the lower Appellate Court committed further illegality while recording the finding that no proper notice was issued to the accused within stipulated time by the complainant. With a view to substantiate his aforesaid argument, learned counsel representing the complainant invited the attention of the Court to the legal notice Ex.PW1/A, dated 17.4.1999 issued to the accused through postal receipt Ex.CA, dated 21.4.1999. He further contended that bare perusal of legal notice Ex.PW1/A, suggests that same was dated 17.4.1999 and if postal receipt dated 21.4.1999 is taken to be date of posting, even in that eventuality findings returned by the lower Appellate Court is totally contrary to the record that legal notice was not got issued within stipulated time by the complainant. Mr. Kanwar, while concluding his arguments, forcibly contended that reasoning of the lower Appellate Court is manifestly unreasonable and unsustainable as there was no occasion for the Court to disregard the well and consistent testimony of the complainant witnesses on material points and as such, impugned judgment passed by learned lower Appellate Court deserve to be quashed and set-aside. 6. Mr. N.K. Thakur, learned Senior Advocate, duly assisted by Ms. Jamuna, Advocate, supported the impugned judgment passed by learned lower Appellate Court. Mr. Thakur, submitted that bare perusal of the judgment passed by learned lower Appellate Court is based upon the correct appreciation of the evidence available on record and as such, there is no scope of interference of this Court. Mr. Jamuna, Advocate, supported the impugned judgment passed by learned lower Appellate Court. Mr. Thakur, submitted that bare perusal of the judgment passed by learned lower Appellate Court is based upon the correct appreciation of the evidence available on record and as such, there is no scope of interference of this Court. Mr. Thakur, further contended that bare perusal of the judgment passed by the learned trial Court, suggests that the same was not based upon the correct appreciation of the evidence adduced on record by the respective parties, rather same was purely based on conjunctures and surmises and as such, was rightly quashed and set-aside by the learned lower Appellate Court while accepting the appeal preferred on behalf of the accused. Mr. Thakur, strenuously argued that it stands duly proved on record that the cheque Ex.PW2/M was deposited with the bank after expiry of six months and as such, there is no illegality and infirmity in the judgment passed by the learned lower appellate Court. Mr. Thakur, further contended that as per own case of the complainant, cheque in question was received by him from the bank with the endorsement “insufficient funds” on 12.4.1999, whereas legal notice Ex.PW1/A advising the accused to make the payment of the cheque amount within 15 days from the date of the receipt of the information from the bank was admittedly got issued after expiry of 15 days and as such, there is no illegality and infirmity in the judgment passed by the lower Appellate Court. Mr. Thakur, while concluding his arguments stated that bare perusal of the evidence led on record by the complainant, clearly suggests that there are major contradictions and as such, rightly discarded by the lower appellate Court while accepting the appeal. In the aforesaid background, learned counsel for the accused sought dismissal of the present revision petition. 7. I have heard learned counsel for the parties and have carefully gone through the record. 8. It is undisputed before me that accused issued a cheque amounting to Rs. 40,000/- in favour of the complainant on 12.10.1998 for consideration of amount which he had borrowed from the complainant. Learned trial Court on the basis of the material on record found accused guilty of having committed the offence under Section 138 of the Act and accordingly convicted and sentenced him as per the description given hereinabove. 40,000/- in favour of the complainant on 12.10.1998 for consideration of amount which he had borrowed from the complainant. Learned trial Court on the basis of the material on record found accused guilty of having committed the offence under Section 138 of the Act and accordingly convicted and sentenced him as per the description given hereinabove. Learned Lower Appellate Court while accepting the appeal preferred on behalf of the petitioner-accused came to the conclusion that cheque Ex.PW2/M, dated 12.10.1998 was submitted before the bank twice. Learned lower appellate Court further concluded that since complainant presented the cheque in question twice in the bank on 27.2.1999 and 12.4.1999, it was incumbent upon him to issue notice to the petitioner-accused after receiving memo having endorsement “insufficient funds” from the bank on 27.2.1999. Learned Appellate Court further held that once cheque Ex.PW2/M was returned by the bank on 27.2.1999, notice ought to have been issued to the accused by the complainant as contemplated under clause (b) of proviso to Section 138 of the Act. Apart from above, learned appellate Court also concluded that thereafter cheque was presented after prescribed period of six months i.e. 12.4.1999 and as such complaint under Section 138 of the Act was maintainable. 9. After perusing the aforesaid findings returned by the learned lower appellate Court, this Court has no hesitation to conclude that the learned lower appellate Court has miserably failed to appreciate the fact that the cheque could be presented any number of times during the period of its validity by the payee and it is also well settled law that on each presentation of the cheque and its dishonour fresh right and new cause of action accrues in his favour and there is no bar under Section 138 of the Act to present the cheque before the bank for encashment after dishonouring the same at one occasion. True it is that if after getting intimation from the bank with regard to dishonour of the cheque, complainant gives a notice under clause (b) of Section 138 of the Act, he forfeits his right to present the cheque again with the bank even after getting memo of the bank indicating the reasons for dishonouring of the cheque because period of one month for filing the complaint would be reckoned from the day immediately following the day on which the period of 15 days from the date of the receipt of the notice by the drawer, expires. 10. Admittedly, in the present case, complainant presented the cheque twice on 27.2.1999 and 12.4.1999, but fact remains that after getting intimation Ex.PW2/A from the bank with regard to dishonour of the cheque, complainant chose not to send notice, as envisaged under clause (b) of proviso to Section 138 of the Act, rather he again presented the cheque on 12.4.1999 for payment in the bank. Since, on 12.4.1999 cheque was returned by the bank vide memo Ex.PW2/D with the remarks “insufficient funds”, he got legal notice issued in terms of clause (b) to Section 138 of the Act, hence, there is no illegality, if any, committed by the complainant while presenting the cheque on second occasion i.e.12.4.1999 without intimating the accused with regard to dishonour of the cheque on 27.2.1999. Had the complainant informed the accused with regard to dishonour of the cheque on 27.2.1999, he would have forfeited his right to present the cheque again on 12.4.1999. Since, the complainant instead of intimating the accused with regard to dishonour of the cheque on 27.2.1999 again presented the cheque on 12.4.1999, there is no illegality, whatsoever, in presenting the cheque on second occasion by the complainant. As far as, another finding returned by the lower appellate Court that cheque Ex.PW2/M was presented with the bank after prescribed period of six months from the date on which it is drawn is also erroneous and without any basis. It is clearly proved on record that cheque Ex.PW2/M was presented by the complainant on 12.4.1999 i.e. after expiry of six months but on 11.4.1999. It is clearly proved on record that cheque Ex.PW2/M was presented by the complainant on 12.4.1999 i.e. after expiry of six months but on 11.4.1999. There was a local holiday being Sunday and the complainant presented the same on 12.4.1999, there is nothing on the record that the bank refused to accept the cheque on 12.4.1999 on the ground of validity, rather bank accepted the same and issued memo Ex.PW2/D with the endorsement “insufficient funds”. Since, cheque was dated 12.10.1998, same was valid up to 11.4.1999 but as has been observed that on 11.4.1999 there was holiday being Sunday and as such, there was no occasion for the complainant to present the same on Holiday. 11. At this stage, it would be apt to reproduce Section 25 of the Act as under:- “25. When day of maturity is a holiday:- When the day on which a promissory note or bill of exchange is at maturity is a public holiday, the instrument shall be deemed to be due on the next preceding business day.” 12. Bare perusal of the aforesaid provision contained in the Act, clearly suggests that if on the day a promissory note or bill of exchange is at maturity is a public holiday, the instrument shall be deemed to be due on the next preceding business day. In the present case, since cheque was to expire on 11.4.1999, which was holiday being Sunday, instrument i.e. cheque was valid up to 12.4.1999 and as such, same was rightly accepted by the bank. Hence, in view of the provisions of law, this Court is not in agreement with the findings returned by the Court below that the complainant failed to deposit the cheque within the period of six months from the date on which it is drawn or within the period of its validity. There is no dispute that cheque in question was to expire on 11.4.1999, on which date, it was holiday being Sunday and as such, there is no delay, if any, on the part of the complainant to present the same on 12.4.1999. Similarly, this Court finds that learned lower appellate Court has fallen in grave error while concluding that the complainant failed to get the legal notice issued to the drawee of the cheque within the period of 15 days from the date of information from the bank. Similarly, this Court finds that learned lower appellate Court has fallen in grave error while concluding that the complainant failed to get the legal notice issued to the drawee of the cheque within the period of 15 days from the date of information from the bank. Admittedly, In the instant case, intimation with regard to dishonour of the cheque was received by the complainant from the bank on 12.4.1999. Complainant got issued legal notice Ex.PW1/A to accused through his counsel vide postal receipt Ex.CA. Perusal of Ex.PW1/A, clearly suggests that notice is dated 17.4.1999 and perusal of receipt Ex.CA, clearly suggests that same was posted on 21.4.1999, meaning thereby legal notice was got issued by the complainant well within 15 days from the receipt of the intimation from the bank. In the instant case, since intimation from the bank was received on 12.4.1999, it is not understood how the learned lower appellate Court came to the conclusion that the complainant failed to issue legal notice within prescribed period, as envisaged under Section 138 of the Act, even if the period is counted from the date of postal receipt Ex.CA, dated 21.4.1999, it can be easily concluded that legal notice was got issued within a period of 15 days from the date of receipt of intimation i.e. 12.4.1999. When, it stands duly proved on record that the complainant got legal notice issued on 21.4.1999 through postal receipt Ex.CA, presumption of due service of the notice would stand attracted. 13. It is not the requirement of law to state in the complaint that the notice was served on a particular date as notice is deemed to have been served with the addressee or he is deemed to have the knowledge of the notice unless and until contrary is proved at the stage of evidence. In this regard reliance is placed on the judgment of the Hon’ble Apex Court in the case of Ajeet Seeds Ltd. V. K. Gopala Krishnaiah, 2014 (12) SCC 685 . The relevant para Nos.4, 5 and 6 of the judgment are reproduced as under:- 4. The Proviso (b) & (c) appended to Section 138 of the Act lays down the conditions which are to be complied with before a complaint under Section 138 of the Act could be filed, which are quoted hereunder:-- "138. The relevant para Nos.4, 5 and 6 of the judgment are reproduced as under:- 4. The Proviso (b) & (c) appended to Section 138 of the Act lays down the conditions which are to be complied with before a complaint under Section 138 of the Act could be filed, which are quoted hereunder:-- "138. Dishonour of cheque for insufficiency, etc., of funds in the account.- Provided that nothing contained in this section shall apply unless-- (a) .......... (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.-- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability. 5. A perusal of Clauses (b) & (c) to the proviso would indicate that before a complaint could be filed, the payee or the holder in due course of the cheque, as the case may be, is to make a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid and the drawer of such cheque fails to make payment of the said amount to the payee or as the case may be, to the holder in due course within 15 days of the receipt of notice. 6. The Apex Court in the case C.C. Alavi Haji v. Palapetty Muhammed and another, 2007 (6) SCC 555 , held as under:-- "10. 6. The Apex Court in the case C.C. Alavi Haji v. Palapetty Muhammed and another, 2007 (6) SCC 555 , held as under:-- "10. It is, thus, trite to say that where the payee dispatches the notice by registered post with correct address of the drawer of the cheque, the principle incorporated in Section 27 of the G.C. 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. 11. However, that the referring Bench was of the view that this Court in Vinod Shivappas case (supra) did not take note of Section 114 of Evidence Act in its proper perspective. It felts that the presumption under Section 114 of the Evidence Act being a rebuttable presumption, the complaint should contain necessary averments to raise the presumption of service of notice; that it was not sufficient for a complainant to state that a notice was sent by registered post and that the notice was returned with the endorsement out of station; and that there should be a further averment that the addressee-drawer had deliberately avoided receiving the notice or that the addressee had knowledge of the notice, for raising a presumption under Section 114 of Evidence Act. 12. Therefore, the moot question requiring consideration is in regard to the implication of Section 114 of the Indian Evidence Act, 1872 insofar as the service of notice under the said proviso is concerned. Section 114 of the Indian Evidence Act, 1872 reads as follows: Section 114- Court may presume existence of certain facts -The Court may 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. Illustrations The Court may presume - (f) That the common course of business has been followed in particular cases. .... 13. Illustrations The Court may presume - (f) That the common course of business has been followed in particular cases. .... 13. According to Section 114 of the Act, read with illustration (f) thereunder, when it appears to the Court that the common course of business renders it probable that a thing would happen, the Court may draw presumption that the thing would have happened, unless there are circumstances in a particular case to show that the common course of business was not followed. Thus, 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. Consequently, the court can presume that the common course of business has been followed in particular cases. When applied to communications sent by post, Section 114 enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. But the presumption that is raised under Section 27 of the G.C. Act is a far stronger presumption. Further, while Section 114 of Evidence Act refers to a general presumption, Section 27 refers to a specific presumption. For the sake of ready reference, Section 27 of G.C. Act is extracted below: 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 served by post, whether the expression serve or either of the expressions 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, prepaying 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. 14. 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. 14. 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. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. 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. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement refused or not available in the house or house locked or shop closed or addressee not in station, due service has to be presumed. (Vide Jagdish Singh v. Natthu Singh, AIR 1992 SC 1604 ; State of M.P. v. Hiralal and Ors. (1996) 7 SCC 523 and V. Raja Kumari v. P. Subbarama Naidu and Anr. (2004) 8 SCC 774. It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved. 15. Insofar as the question of disclosure of necessary particulars with regard to the issue of notice in terms of proviso (b) of Section 138 of the Act, in order to enable the Court to draw presumption or inference either under Section 27 of the G.C. Act or Section 114 of the Evidence Act, is concerned, there is no material difference between the two provisions. In our opinion therefore, when the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of Clause (b) of proviso to Section 138 of the Act stands complied with. It is needless to emphasis that the complaint must contain basic facts regarding the mode and manner of the issuance of notice to the drawer of the cheque. It is needless to emphasis that the complaint must contain basic facts regarding the mode and manner of the issuance of notice to the drawer of the cheque. It is well settled that at the time of taking cognizance of the complaint under Section 138 of the Act, the Court is required to be prima facie satisfied that a case under the said Section is made out and the aforenoted mandatory statutory procedural requirements have been complied with. It is then for the drawer to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the cover was incorrect or that the letter was never tendered or that the report of the postman was incorrect. In our opinion, this interpretation of the provision would effectuate the object and purpose for which proviso to Section 138 was enacted, namely, to avoid unnecessary hardship to an honest drawer of a cheque and to provide him an opportunity to make amends." 14. In view of the detailed discussion made hereinabove as well as law laid down by the Hon’ble Apex Court, this Court has no hesitation to conclude that once the notice under Section 138 of the Act is in writing to the drawer of the cheque within 15 days from the date of receipt of intimation from the bank, then presumption under Section 114 of the Evidence Act comes into play that registered notice was sent to the addressee of the cheque and it shall be deemed to have been served to the addressee. In the present case as clearly emerge from the record that legal notice Ex.PW1/A, dated 17.4.199 was sent through registered post on 21.4.1999 i.e within the period of 15 days from the receipt of intimation from the bank and as such, findings of the learned lower Appellate Court deserve to be quashed and set-aside being contrary to facts as well as law. 15. Consequently, in view of the aforesaid discussion as well as law laid down by the Hon’ble Apex Court, judgment passed by learned lower appellate Court deserve to be quashed and set-aside being contrary to the record as well as law. Accordingly, the present revision petition is allowed and judgment passed by learned lower appellate Court is quashed and set-aside. 15. Consequently, in view of the aforesaid discussion as well as law laid down by the Hon’ble Apex Court, judgment passed by learned lower appellate Court deserve to be quashed and set-aside being contrary to the record as well as law. Accordingly, the present revision petition is allowed and judgment passed by learned lower appellate Court is quashed and set-aside. The respondent-accused is directed to surrender herself before the learned trial Court forthwith to serve the sentence as awarded by the learned trial Court. Accordingly, the present petition is disposed of alongwith pending application (s), if any.