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2018 DIGILAW 1556 (BOM)

Usha v. Suni

2018-06-30

Z.A.HAQ

body2018
JUDGMENT Z.A. Haq, J. (Oral) - None appears for the respondent No.1 though served. Heard Shri R.V. Shah, Advocate for the appellant/original complainant and Shri P.S. Tembhare, A.P.P. for the State of Maharashtra. 2. The complainant has filed this appeal to challenge the judgment passed by the learned Magistrate dismissing the complaint filed by the complainant under section 138 of the Negotiable Instruments Act, 1881 and acquitting the accused. The complaint is dismissed on the ground that the complainant has failed to prove that the cheques (Exh. Nos.15, 16 and 17) were issued by the accused to discharge legal liability and that the demand notice was not served by the complainant on the accused before filing the complaint. 3. The accused has not disputed that the cheques were issued by him and the signatures on the cheques were of the accused. The defence of the accused is that there had been some transactions between the accused and the husband of the complainant and the cheques were given for some collateral purposes. In view of presumption created by section 139 of the Negotiable Instruments Act, 1881 burden to prove that the cheques were given by the accused to the complainant as collateral security would be on the accused. In the present case, as the accused contends that the notice demanding the amount was not served on him, obviously, there is no reply to the notice issued by the complainant. However, it goes unexplained as to why the accused has not taken any steps to get back the cheques (Exh. Nos.15, 16 and 17) from the complainant after the cheques were presented to the bank and were dishonoured. The accused has not been able to show that he was not aware about the fact that the cheques given by him to the complainant were presented for encashment and were dishonoured by the bank. The cheques were dishonoured as the amount in the account of the accused was insufficient. The conduct of the accused is relevant and shows that the accused has tried to create a defence and it is wrongly accepted by the learned Magistrate. 4. As far as the service of notice on the accused is concerned, the complainant had issued two notices, one on 12th November, 2005 and the other on 25th November, 2005. The conduct of the accused is relevant and shows that the accused has tried to create a defence and it is wrongly accepted by the learned Magistrate. 4. As far as the service of notice on the accused is concerned, the complainant had issued two notices, one on 12th November, 2005 and the other on 25th November, 2005. The learned Magistrate has recorded that there is nothing on record to show whether notice dated 12th November, 2005 was served on the accused or not. As far as notice dated 25th November, 2005 is concerned, the envelope containing this notice is returned back with the endorsement that the notice had not claimed it. The complainant had also sent copy of notice dated 25th November, 2005 under certificate of positing on two different addresses. Thus, it has to be presumed that the notice dated 25th November, 2005 was served on the accused. The learned Advocate for the appellant has rightly relied on the judgment given in the case of N. Parameswaran Unni vs. G. Kannan and another reported in (2017) 5 SCC 737 to support his argument that the service of notice dated 25th November, 2005 on the accused has to be treated as valid service and as the notice was served within prescribed period and the complaint is filed within the period of limitation, the complaint cannot be dismissed on the ground of non service of notice on the accused. The learned Magistrate has committed an error while appreciating the facts on record and has wrongly dismissed the complaint on the ground that the complainant has failed to prove that notice of demand was properly served on the accused as required by law. 5. In view of the above, it has to be held that the impugned judgment is unsustainable in law. Hence, the following order: (i) The impugned judgment is set aside. (ii) The complaint filed by the complainant under section 138 of the Negotiable Instruments Act, 1881 is allowed. (iii) It is held that the respondent No.1/accused is guilty of commission of offence under section 138 of the Negotiable Instruments Act, 1881 and is liable to be convicted. (iv) The respondent No.l/accused shall deposit Rs. 1,50,000/( Rs. One Lakh Fifty Thousand) within three months. On deposit of this amount by the accused, an amount of Rs. 1,40,000/( Rs. One Lakh Forty Thousand) be given to the complainant. (iv) The respondent No.l/accused shall deposit Rs. 1,50,000/( Rs. One Lakh Fifty Thousand) within three months. On deposit of this amount by the accused, an amount of Rs. 1,40,000/( Rs. One Lakh Forty Thousand) be given to the complainant. (v) If the amount of Rs. 1,50,000/( Rs. One Lakh Fifty Thousand) is not deposited by the accused within three months, the accused shall undergo imprisonment for three months. (vi) The accused shall pay costs of Rs. 60,000/( Rs. Sixty Thousand) to the complainant within three months. (vii) The appeal is allowed in the above terms. (viii) The Advocate for the appellant shall send copy of this judgment to the respondent/accused by speed post acknowledgement due and file affidavit of compliance within two weeks, on record of this appeal. (ix) The Registry of this Court shall also send copy of this order to the accused immediately by speed post acknowledgement due.