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Allahabad High Court · body

2018 DIGILAW 1726 (ALL)

VIDHYAWATI CONSTRUCTION COMPANY v. STATE OF U. P.

2018-08-06

VIVEK KUMAR SINGH

body2018
JUDGMENT Hon’ble Vivek Kumar Singh, J.—Heard Sri Rajrshi Gupta learned counsel for the Revisionist and Sri V.K. Jaiswal, learned counsel for the opposite party. 2. The present revision has been filed challenging the impugned judgment and order dated 11.12.2012 passed in Crl. Appeal No. 34 of 2012 (Bajrang Tripathi v. State of U.P. and others). 3. Brief facts of the case are that on account of dishonour of cheque No. 839473 dated 21.7.2007 of India Overseas Bank of Branch Azamgarh for Rs. 25 lacs issued by opposite party No. 2, the revisionist filed Criminal Revision against opposite party No. 2 under Section 138 of Negotiable Instrument Act. The said cheque was returned by Punjab National Bank vide letter dated 15.4.2008 alongwith the memorandum of India Overseas Bank, Azamgarh Branch. Pursuant to that a notice dated 24.4.2008 under Section 138 Negotiable Instrument Act was sent to opposite party No. 2 as he failed to honour his commitment. In pursuance of the summoning order, the opposite party No. 2 appeared before the trial Court and admitted the issuance of cheque. 4. The Chief Judicial Magistrate, Allahabad by means of judgment dated 31.1.2012 convicted the opposite party No. 2 for offence under Section 138 of Negotiable Instrument Act and awarded one year imprisonment alongwith fine of Rs. 50 lacs. Aggrieved by the order of the Chief Judicial Magistrate, Allahabad, the opposite party No. 2 filed Criminal Appeal being Criminal Appeal No. 34 of 2012. The Additional Sessions Judge, Court No. 8, Allahabad by means of judgment dated 11.12.2012 allowed the criminal appeal and acquitted the opposite party No. 2 from the charges for offence under Section 138 of Negotiable Instrument Act. In the subject revision the order passed by Additional Sessions Judge, Court No. 8, Allahabad dated 11.12.2012 is under challenge. Learned counsel for the revisionist has drawn attention of the Court towards Section 118 of the Negotiable Instrument Act. In the subject revision the order passed by Additional Sessions Judge, Court No. 8, Allahabad dated 11.12.2012 is under challenge. Learned counsel for the revisionist has drawn attention of the Court towards Section 118 of the Negotiable Instrument Act. The contents of the complete Section 118 of Negotiable Instrument Act is quoted hereinbelow: 118 Presumptions as to negotiable instruments.—Until the contrary is proved, the following presumptions shall be made:— (a) of consideration—that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration; (b) as to date—that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance—that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; (d) as to time of transfer—that every transfer of a negotiable instrument was made before its maturity; (e) as to order of indorsements—that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; (f) as to stamps—that a lost promissory note, bill of exchange or cheque was duly stamped; (g) that holder is a holder in due course—that the holder of a negotiable instrument is a holder in due course: Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him. 5. Learned counsel for the revisionist has brought to the notice of this Court a judgment of Hon’ble Apex Court passed in C.C. Alavi Haji v. Palapetty Muhammed and another in Criminal Appeal No. 767 of 2007 decided on 18.5.2007. He has drawn the attention of the Court towards paragraph 2 of the said Judgment which is with regard to question of service of notice in terms of clause (B) of proviso to Section 138 of the Negotiable Instrument Act 1881. He has drawn the attention of the Court towards paragraph 2 of the said Judgment which is with regard to question of service of notice in terms of clause (B) of proviso to Section 138 of the Negotiable Instrument Act 1881. The order of the Apex Court in the said judgment has observed that while rendering the decision in Vinod Shivappa v. Nanda Belliappa, (2006) 6 SCC 456 , the Hon’ble Apex Court has not taken into consideration the presumption in respect of an official act as provided under Section 114 of the Indian Evidence Act, 1872, the following question has been referred for consideration of the larger Bench: “Whether in absence of any averment in the complaint to the effect that the accused had a role to play in the matter of non-receipt of legal notice; or that the accused deliberately avoided service of notice, the same could have been entertained keeping in view the decision of this Court in Vinod Shivappa’s case (supra)?” 6. In the said judgment the Hon’ble Apex Court has touched all the aspects highlighted and reiterated by it in Vinod Shivappa (Supra). While dealing with the situation the Apex Court had held that where notice could not be served on the addressee for the one or the other reason, such as non availablility at the time of delivery, or premises remaining locked on account of his having gone elsewhere etc. it was observed that if in each such case, the law is understood to mean that there has been no service of notice, it would completely defeat the very purpose of the Act. It would then be very easy for an unscrupulous and dishonest drawer of a cheque to make himself scarce for sometime after issuing the cheque so that the requisite statutory notice can never be served upon him and consequently he can never be prosecuted. It was further observed that once the payee of the cheque issues notice to the drawer of the cheque, the cause of action to file a complaint arises on the expiry of the period prescribed for payment by the drawer of the cheque. If he does not file a complaint within one month of the date on which the cause of action arises under Clause (c) of the proviso to Section 138 of the Act, his complaint gets barred by time. If he does not file a complaint within one month of the date on which the cause of action arises under Clause (c) of the proviso to Section 138 of the Act, his complaint gets barred by time. Thus, a person who can dodge the postman for about a month or two, or a person who can get a fake endorsement made regarding his non availability, can successfully avoid his prosecution because the payee is bound to issue notice to him within a period of 30 days from the date of receipt of information from the bank regarding the return of the cheque as unpaid. He is, therefore, bound to issue the notice, which may be returned with an endorsement that the addressee is not available on the given address. The Apex Court held: “We cannot also lose sight of the fact that the drawer may be dubious means manage to get an incorrect endorsement made on the envelope that the premises has been found locked or tht the addressee was not available at the time when postman went for delivery of the letter. It may be that the address is correct and even the addressee is available but a wrong endorsement is manipulated by the addressee. In such a case, if the facts are proved, it may amount to refusal of the notice. If the complaint is able to prove that the drawer of the cheque knew about the notice and deliberately evaded service and got a false endorsement made only to defeat the process of law, the Court shall presume service of notice. This, however, is a matter of evidence and proof. Thus even in a case where the notice is returned with the endorsement that the premises has always been found locked or the addressee was not available at the time of postal delivery, it will be open to the complainant to prove at the trial by evidence that the endorsement is not correct and that the addressee, namely, the drawer of the cheque, with knowledge of the notice had deliberately avoided to receive notice. Therefore, it would be premature at the stage of issuance of process, to move the High Court for quashing of the proceeding under Section 482 of the Code of Criminal Procedure. Therefore, it would be premature at the stage of issuance of process, to move the High Court for quashing of the proceeding under Section 482 of the Code of Criminal Procedure. The question as to whether the service of notice has been fraudulently refused by unscrupulous means is a question of fact to be decided on the basis of evidence. In such a case the High Court ought not to exercise its jurisdiction under Section 482 of the Code of Criminal Procedure.” 7. Considering all the aspects as mentioned hereinabove the order dated 11.12.2012 is set aside passed in Criminal Appeal No. 34 of 2012 between (Bajranj Tripathi v. State of U.P. and another) and the order dated 31.1.2012 passed in Case No. 1552 of 2011 M/s Vidhwati Cosntruction v. Bajranj Tripathi is affirmed. 8. The matter is remanded back to the learned Court below to consider afresh the submissions made by the revisionist as also discussed above within a period of three months from the date of production of a certified copy of this order after giving due opportunity of hearing to both the parties. 9. The lower Court record is directed to be returned back to the learned Court below so as to enable it to pass afresh order in accordance with law and keeping in view the relevant provision of Negotiable Instrument Act as well as in the light of judgment passed by the Hon’ble Apex Court in the Case of C.C. Alavi Haji v. Palapetty Muhammed and another) passed in Criminal Appeal No. 767 of 2007 decided on 18th May, 2007. 10. With these observations, the revision is allowed. No order as to costs.