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2018 DIGILAW 720 (JHR)

Jitendra Kumar Singh v. State of Jharkhand

2018-04-03

APARESH KUMAR SINGH, RATNAKER BHENGRA

body2018
ORDER : Heard learned counsel for the petitioner and State. 2. Petitioner seeks special leave to appeal against the judgment of acquittal dated 20th December, 2017 passed by learned Court of Judicial Magistrate, 1st Class, Jamshedpur in C/1 Case No. 2710 of 2013, whereunder the sole accused/opposite party No. 2 herein has been acquitted of the charges under Section 138 of Negotiable Instrument Act, 1881. 3. Complainant's case in brief as made out in the complaint is that the accused, a registered contractor under JUSCO and well known to him, took a sum of Rs. 5 lac from the complainant to develop his business and assured that he will return the aforesaid amount by July, 2013. On being demanded on 22nd July, 2013, he issued a Cheque bearing No. 191026 for Rs. 5 lac on the same day drawn on State Bank of India, Sakchi Branch, Jamshedpur in favour of the complainant. On being presented to the Bank, it was returned with memo "Funds Insufficient" on 5th August, 2013. Complainant sent a legal notice to the accused through his lawyer by registered post with A/D on 5th August, 2013 demanding cash payment of the Cheque amount within a period of 15 days, but despite lapse of aforesaid period, the accused neither paid the said amount nor gave reply to the legal notice. Therefore, a complaint was filed on 24th August, 2013. 4. After solemn affirmation of the complainant and inquiry, learned trial Court found prima facie case made out under Section 138 of Negotiable Instrument Act and issued summons on the accused to appear. On accusation being explained to the accused on his appearance on 6th February, 2014, he pleaded not guilty and claimed to be tried. 5. Complainant examined himself as C.W.-1 and was also subjected to cross-examination. The following exhibits were adduced on his behalf : Ext. 1 Original cheque No. 191026 dated 22.7.2013 of Rs. 15,00,000/- drawn on SBI, Sakchi Branch, Jamshedpur (with objection). Ext. 2 Original Bank Return Memo dated 5.8.2013 of cheque No. 191026. Ext. 3 Copy of Legal notice dated 5.8.2013 Ext. 3/1 Postal Receipt dated 5.8.2013. 6. During cross-examination, defence proved copy of the notice of certificate case and signature of complainant in capital letter on attendance of C.W.-1 on 8th September, 2014, which were marked as Exts.-A and B (with objection) respectively. 7. Ext. 3 Copy of Legal notice dated 5.8.2013 Ext. 3/1 Postal Receipt dated 5.8.2013. 6. During cross-examination, defence proved copy of the notice of certificate case and signature of complainant in capital letter on attendance of C.W.-1 on 8th September, 2014, which were marked as Exts.-A and B (with objection) respectively. 7. The statement of the accused was recorded under Section 313, CrPC after conclusion of the evidence of the complainant. 8. Accused examined himself as DW1 and adduced the following documents in his defence : Ext. C to Ext. C/4 Five cash deposit slips dated 29.08.14, 27.6.14, 31.7.14, 28.10.14 and 29.12.14 respectively. 9. Learned trial Court after analysis of the evidence on record came to a considered finding that the complainant had failed to send a legal notice at the correct address of the accused i.e., M4-20, Old cable town, Golmuri, Jamshedpur. This was the address averred in the complaint petition also. Learned trial Court found that C.W.1-complainant, in his cross-examination, deposed that he was having knowledge of the address of accused as M4-80 and in para 20 he admitted himself that he sent a demand notice at the address of M4-20, Cable Town (Ext. 3/1). He also admitted that he had not sent any demand notice at the address-M4-80. He also admitted at para 21 that though he was in possession of Acknowledgment Due, but he did not file the same in the Court. He also stated at para 22 that he was aware that the accused had received the notice and he admitted that he was having the Acknowledgment Due at his home, but he could not assure whether he could file the same in the Court or not. During cross-examination, a suggestion was put to C.W.1 that the demand notice was sent at wrong address and this was concealed from the Court, which C.W.1 denied. In paras 24 and 25, in his cross-examination, he admitted that the accused used to reside in M4-80 and he never seen him in M-20 quarter. He also admitted at para 26, in his cross-examination, that in the complaint petition the address of the accused is shown as M-20. In para 34, he admitted that he had not sent any demand notice at the address of the accused and that accused never took any loan from him. 10. The accused DW1, in his examination-in-chief, had denied receipt of demand notice. In para 34, he admitted that he had not sent any demand notice at the address of the accused and that accused never took any loan from him. 10. The accused DW1, in his examination-in-chief, had denied receipt of demand notice. During cross-examination in para 12 he stated that he came to know about the case only upon receipt of notice from the Court. 11. Learned trial Court, therefore, found that "Receipt of Notice" is a point of determination in the present case. Since the prosecution asserted itself that the accused having receipt of notice failed to pay him the cheque amount then in that case burden to prove the fact of delivery of notice is based upon the prosecution. But the complainant failed to prove any document of delivery of notice to the accused during trial even when he admitted that he had received Acknowledgment Due of the service. C.W.1 himself admitted that the notice was sent at wrong address of the accused. Learned trial Court observed that the complainant had concealed the fact of service of notice to the accused at wrong address and hence failed to prove the factum of "service or Acknowledgment of delivery of Demand Notice" to the accused by leading any cogent evidence which is the very material fact to be proved by the prosecution to launch the prosecution under Section 138 of Negotiable Instruments Act. Reliance was placed upon the judgment rendered by the Apex Court in the case of Subodh S. Salaskar v. Jayprakash M. Shah and another, reported in AIR 2008 SC 3086 and in the case of Yogendra Pratap Singh v. Savitri Pandey, reported in AIR 2000 SC 2946 to arrive at the finding of acquittal in favour of the accused person. 12. Learned counsel for the petitioner has laboured to convince us that all necessary averments to fulfil the ingredients of Section 138 of Negotiable Instruments Act were incorporated in the complaint petition and also proved by the complainant-C.W.1. The return of Cheque due to insufficient fund was also accepted. Legal notice sent to the accused at the address i.e., M4-20, Old cable town, Golmuri, Jamshedpur under registered cover was also evidenced. Therefore, the ingredient of offence would satisfy. The return of Cheque due to insufficient fund was also accepted. Legal notice sent to the accused at the address i.e., M4-20, Old cable town, Golmuri, Jamshedpur under registered cover was also evidenced. Therefore, the ingredient of offence would satisfy. Learned trial Court committed an error in law in holding that no cause of action had arisen for the complainant to prosecute the offence under Section 138 of Negotiable Instruments Act. Reliance has been placed upon the judgment rendered by the Apex Court in the case of C.C. Alavi Haji v. Palapetty Muhammed and another, reported in 2007 (3) East Cr C 209 (SC) : (2007) 6 SCC 555 , para 17 thereof and also in the case of M/s. Ajeet Seeds Ltd. v. K. Gopala Krishnaiah, reported in AIR 2014 SC 3057 , para 10 thereof. 13. Learned A.P.P. for the State has supported the impugned judgment and submits that the impugned judgment is well reasoned on the point of lack of proper service of notice which is necessary to fulfil the ingredients of Section 138 of Negotiable Instruments Act (Clauses b and c to the proviso). 14. We have considered the submission of learned counsel for the parties at length and also gone through the impugned judgment. We have also perused the judgments cited by learned counsel for the petitioner. 15. From the findings on record, which do not stand impeached by the petitioner, it is evident that complainant petitioner herein had sent a legal notice at incorrect address of the accused i.e. M4-20, Old cable town, Golmuri, Jamshedpur. He himself admitted, in his cross-examination, at para 19 that he was having the knowledge of the address of the accused as M4-80, Cable Town. He failed to produce acknowledgment due to show service or receipt of notice also on the part of the accused to discharge the burden upon the complainant in terms of Section 138 of Negotiable Instruments Act (Clauses band c to the proviso). Inescapable position in law that emerges from the judgment relied upon by the petitioner is that the complainant or the payee, in the first place, is required to dispatch the notice by registered post with correct address of the drawer of the cheque in terms of principles incorporated under Section 27 of General Clauses Act. Inescapable position in law that emerges from the judgment relied upon by the petitioner is that the complainant or the payee, in the first place, is required to dispatch the notice by registered post with correct address of the drawer of the cheque in terms of principles incorporated under Section 27 of General Clauses Act. If this requirement of Clause b of proviso to Section 138 of Negotiable Instruments Act, stands complied with, cause of action to file a complaint arises on the expiry of the period prescribed in Clause c of the said proviso if payment is not made by the drawer of the cheque. However, it is open to the accused nevertheless to show that he had no knowledge that the notice was brought to his address. Observation made at Para 17 of the report in the case of C.C. Alavi Haji (supra) relied upon by learned counsel for the petitioner has to be read in that context. In case, this ingredient is fulfilled by the complainant, the accused upon whom summon is served has the option to make payment within 15 days of receipt of summons and plead that the complaint is liable to be rejected. The accused cannot then contend that there was no proper service of notice as required under Section 138, by ignoring the statutory presumption to the contrary under Section 27 of the General Clauses Act and Section 114 of the Evidence Act. [See (2007) 6 SCC 555 , Paras 10 and 17)]. 16. In that light, the findings of learned trial Court are well reasoned and cannot be said to be suffering from any error of law or fact. We are, therefore, satisfied that no grounds have been made out on the part of the petitioner to seek special leave to appeal to assail the impugned judgment before appellate Court. Accordingly, the present petition is dismissed. Petition dismissed.