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2016 DIGILAW 433 (ORI)

NARAHARI BARIK v. SAMAPTI PATTANAYAK

2016-06-20

S.PUJAHARI

body2016
ORDER S. Pujahari, J. - The judgment dated 06.12.2013 passed by the learned Addl. Sessions Judge-cum-Special Judge (Vigilance), Balasore in Criminal Appeal No.82/23 of 2011/2012 confirming the trial court's judgment convicting and sentencing the petitioner under Section 138 of the Negotiable Instruments Act, 1881 (for short "the N.I. Act") is sought to be set-aside on the ground of the same being legally not sustainable. 2. The case of the complainant (opposite party no.1 herein) is that on 10.04.2005, on the request of the petitioner-accused, she advanced a friendly loan of Rs.3,50,000/- to him under a written agreement on 20.09.2005, and towards discharge of the said liability, the petitioner issued a cheque for the aforesaid amount which the opposite party no.1 presented to her Bank for encashment. The cheque, however, was dishonoured on the ground of "insufficiency of funds" and intimation in that regard was received by the opposite party no.1 vide the return memo dated 06.10.2005. The opposite party no.1 thereafter issued a demand notice through her Advocate to the petitioner on 18.10.2005 in terms of Clause (b) of the proviso to Section 138 of the N.I. Act. The same was returned un-served with postal remark dated 27.10.2005 that the addressee (petitioner) was found absent from 21.10.2005 to 26.10.2005. The opposite party no.1 received back the said undelivered notice on 30.10.2005 and as the petitioner did not make payment, the opposite party no.1 filed the complaint on 09.11.2005 before the S.D.J.M., Balasore who took cognizance of the offence under Section 138 of the N.I. Act and subsequently the case was made over to the Special Judicial Magistrate, Balasore for trial. As the petitioner pleaded not guilty, trial was held, in course of which both the sides adduced evidence and the learned trial magistrate on appreciation of the evidence found the petitioner guilty under Section 138 of the N.I. Act and sentenced him to undergo S.I. for a period of six months and pay a sum of Rs.3,75,000/- as compensation to the opposite party no.1-complainant. Upon appeal, the verdict of the trial court having been upheld by the learned Addl. Sessions Judge-cum-Special Judge (Vigilance), Balasore, the petitioner has approached this Court by filing the present revision petition. 3. Both the sides have been heard. Upon appeal, the verdict of the trial court having been upheld by the learned Addl. Sessions Judge-cum-Special Judge (Vigilance), Balasore, the petitioner has approached this Court by filing the present revision petition. 3. Both the sides have been heard. The concurrent finding of guilt recorded by the Courts below is challenged mainly on the ground that the complaint was premature on account of the same having been filed before expiry of fifteen days of the statutory notice as stipulated in Clause (c) of the proviso to Section 138 of the N.I. Act, and there is also no specific finding by the Courts below that the petitioner intentionally avoided the said notice. The learned counsel for the petitioner has placed reliance on a decision of the Apex Court in the case of Yogendra Pratap Singh v. Savitri Pandey, AIR 2015 SC 157 , to bolster his contention. 4. On the other hand, the learned counsel for the opposite party no.1- complainant while supporting the impugned judgment draws the attention of this Court to paragraphs-9 and 10 of the judgment of the appellate court, to submit that the points raised by the petitioner have already been dealt with by the learned appellate court and the view in that behalf so taken by the appellate court being in consonance with the principle settled by the Apex Court in the case of K. Bhaskaran v. Sankaran Vaidhyan Balan and another, 2000 (I) OLR (SC) 1 and another three Bench decision of the Apex Court in the case of C.C. Alavi Haji v. Palapetty Muhammed and another, 2007 (II) OLR (SC) 384, needs no interference by this Court. 5. There is no dispute on record that the statutory notice was duly sent by registered post in the correct mail address of the petitioner. The endorsement of the postal employee on the un-delivered postal article shows that during the period from 21.10.2005 to 26.10.2005 when he visited the place, the addressee was found absent from house. The opposite party no.1 in his evidence stated that he received back the undelivered notice on 30.10.2005. The complaint was filed on 09.11.2005. 6. The endorsement of the postal employee on the un-delivered postal article shows that during the period from 21.10.2005 to 26.10.2005 when he visited the place, the addressee was found absent from house. The opposite party no.1 in his evidence stated that he received back the undelivered notice on 30.10.2005. The complaint was filed on 09.11.2005. 6. In the case of Yogendra Pratap Singh (supra), two questions on being referred to by a two Judges Bench came up before a three Judges Bench of the Apex Court for consideration, and the question no.1 was in relation to filing of complaint before expiry of fifteen days in terms of Clause (c) of proviso to Section 138 of the N.I. Act. This question was answered in negative with a pronouncement that a complaint filed before expiry of fifteen days from the date of receipt of the notice issued under Clause (c) of the proviso to Section 138 of the N.I. Act is not maintainable inasmuch as till expiry of the said period of time, no offence can be said to have been committed by the drawer of the cheque/accused. The factual aspect in that reported case reveals that the demand notice had been served on the addressee (accused) on 23.09.2008 and the complaint was filed on 07.10.2008, i.e., before expiry of the stipulated period of fifteen days. Now reverting to the case at hand, the question that assumes primacy is, which is the date to be treated as the date of receipt of the statutory notice by the petitioner. 7. In the case of K. Bhaskaran (supra), the Apex Court in paragraph-20 of the judgment observed as follows :- "20. If a strict interpretation is given that the drawer should have actually received the notice for the period of 15 days to start running no matter that the payee sent the notice on the correct address, a trickster cheque drawer would get the premium to avoid receiving the notice by different strategies and he could escape from the legal consequences of Section 138 of the Act. 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 measures." Referring to Section 27 of the General Clauses Act, the Apex Court further held in paragraph-24 of the judgment as follows :- "24. 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 measures." Referring to Section 27 of the General Clauses Act, the Apex Court further held in paragraph-24 of the judgment as follows :- "24. No doubt Section 138 of the Act does not require that the notice should be given only by "post". Nonetheless the principle incorporated in Section 27 (quoted above) can profitably be imported in a case where the sender has dispatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such non-service. Any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to the strategy of subterfuse by successfully avoiding the notice." 8. Further, a three Judge Bench of the Apex Court in the case of C.C. Alavi Haji (supra), in paragraph-14 of the judgment held as follows :- "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. 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 others, (1996) 7 SCC 523 , and V. Raja Kumari v. P. Subbarama Naidu and another, (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." 9. Thus, as per the settled principle of law, unless and until the contrary is proved by the addressee (accused), service of notice is deemed to have been effected at the time at which the notice would have been delivered in the ordinary course of business. In the present case, to reiterate, the postal employee visited the place in address on 21.10.2005 and repeated his visit till 26.10.2005. In ordinary course of business, the notice would have been delivered to the petitioner on 21.10.2005 had he remained present in the address on that date. There being nothing contrary from the side of the petitioner, the date "21.10.2005" can be taken as the date of deemed service of the statutory notice, and if counted accordingly, the complaint can be safely held to have been filed after expiry of the stipulated period in terms of Clause (c) of the proviso to Section 138 of the N.I. Act. The contention of the petitioner questioning the maintainability of the complaint is, therefore, bereft of any merit. There being nothing further from the side of the petitioner to impeach the sustainability of the impugned judgment, the revision petition deserves to be dismissed. 10. In the result, this revision petition being devoid of any merit stands dismissed. Final Result : Dismissed