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2021 DIGILAW 188 (TRI)

Satya Ranjan Saha v. Biplab Debnath

2021-10-04

S.TALAPATRA

body2021
JUDGMENT To question the legality of the order of acquittal dated 12.07.2018 delivered in Criminal Appeal No.32 of 2017 by the Addl. Sessions Judge, Gomati Judicial District, Udaipur, this appeal has been filed under Section 378 (4) of the Cr.P.C. It may be noted at the outset that the appellant filed a complaint under Section 138 of the Negotiable Instrument Act being CR. 18 of 2016 [NI]. The said complaint was tried by the Judicial Magistrate, First Class, Udaipur, Gomati Tripura. [2] Briefly stated, the allegations made in the complaint is that the respondent No.1 had issued 3[three] cheques bearing No.0000045, 0000046 & 0000047 respectively for an amount of Rs.1,83,000/-, Rs.2,50,000/- & Rs.2,50,000/- in favour of the appellant. All those cheques were dishonoured by the banker for insufficiency of fund in the account of the respondent No.1 [the accused]. According to the appellant, he had rented out his vehicle [Tipper]. It has been further stated that the accused took loan of Rs.2,83,000/- from the complainant [the appellant herein] on condition of repayment whenever the demand of repayment would be made by the complainant. According to the appellant, in order to discharge the liability of repayment, the respondent No.1 issued those cheques on Bank of India, Udaipur town Branch. Those cheques were deposited in the appellant’s savings account No.30045018435 maintained in the SBI. On 30.10.2015 the appellant was informed that the Bank of India had returned those cheques unpaid for insufficiency of fund in the account of the respondent No.1. First on 05.11.2015, as alleged by the appellant, the accused person requested him to deposit the cheques again on 05.11.2015. Again those cheques were dishonoured after the deposit was caused on instruction. The said incident of dishonour of cheque for insufficiency of fund was reported to the appellant. The appellant has claimed to have served a demand notice to the accused on 14.11.2015, but the acknowledgment card did not reach the appellant. As a result, he had communicated to the concerned post office through his counsel. Initially, there was no response from the postal authority. However, on 29.02.2016 Sub- Post Master, Gokulpur Post Office informed his counsel that the notice sent to the accused person had been duly received by the addressee [the respondent No.1] on 18.11.2015. But the accused person did not make payment of the said amount as reflected in those cheques in compliance of the demand. However, on 29.02.2016 Sub- Post Master, Gokulpur Post Office informed his counsel that the notice sent to the accused person had been duly received by the addressee [the respondent No.1] on 18.11.2015. But the accused person did not make payment of the said amount as reflected in those cheques in compliance of the demand. Consequently, on 23.03.2018 the appellant lodged a complaint under Section 138 of the Negotiable Instrument Act, 1881. [3] The trial judge has observed that there is proof that the notice demanding payment of the amount as described in the cheques was received by the accused [the respondent No.1]. The trial judge has, inter alia, has observed as under: “The evidence of CW-1 reveals that the demand notice was issued on 14.11.2015 through his advocate, by registered post. Exhibit.16 i.e. the letter dated 29.02.2016 reveals that the accused person received the legal notice on 18.11.2015. The accused person has not challenged the legal validity of the above documents and he has also not denied that he had received the legal notice sent by the complainant on 18.11.2015. Therefore, it can be safely concluded that the demand notice was issued within thirty days of the receipt of intimation of first dishonour of the cheques as the date of receipt of intimation of first dishonour of the cheques as the date of receipt of intimation was on 30.10.2015. As such, considering the above documentary evidences, I have no hesitation to hold that the demand notice was properly served upon the accused.” [4] The only defence that was raised by the respondent No.1 that all those cheques were lost from his custody and the appellant has deposited those for unlawful gain. The respondent No.1 had no liability to discharge as stated by the complainant, the appellant herein. The trial judge had believed the evidence of the complainant and held the respondent No.1 is guilty and responsible for dishonour of cheques. The complaint was instituted on complying the requirement as laid down in Section 138 of the NI Act. Hence, it has been observed that the accused has committed the offence punishable under Section 138 of the NI Act and thus, the accused has been convicted under Section 138 of the NI Act. As consequence of such conviction, the accused has been sentenced to pay fine of Rs.6,83,000/- and in default therefore, to suffer simple imprisonment for 6[six] months. Hence, it has been observed that the accused has committed the offence punishable under Section 138 of the NI Act and thus, the accused has been convicted under Section 138 of the NI Act. As consequence of such conviction, the accused has been sentenced to pay fine of Rs.6,83,000/- and in default therefore, to suffer simple imprisonment for 6[six] months. It has been further observed that the fine money, if realised, shall be paid in full to the complainant as compensation. The said judgment and order dated 27.06.2016 delivered in CR 18 of 2016 [NI] was challenged in the court of the Sessions Judge, Gomati, Udaipur by the respondent No.1. The said appeal was allowed by the Sessions Judge holding that the complainant has failed to prove his case as no agreement [in writing] has been proved to establish the agreed monthly rent and the actual amount due on account of rent. Since there is no such proof of legally enforceable debt or liability to be discharged by the accused person, the accused person cannot be held guilty of dishonour of cheque. Hence, the judgment of conviction and the consequential order of sentence have been set aside by the Sessions Judge. It has been observed by the appellate court as follows: 15. In this appeal Ld. Counsel for the appellant took me to the averments of the complaint petition and submitted that complainant nowhere stated the amount of rent settled and to be paid by the appellant nor it was stated at what intervals, either monthly or weekly, such amount was required to be paid by the appellant. Complainant nowhere stated the amount of total rent accumulated for the use of vehicles, as due, but stated simply that as per admission of appellant, Rs.4,00,000.00 stood due as rent which the appellant denied. It was also not disclosed on which date accused approached complainant for letting the vehicles nor was it disclosed on which date appellant took those vehicles for his use from the complainant for the period 01.08.2015 to 03.10.2015. Though complainant mentioned that he gave cash loan of Rs.2,83,000.00 to the appellant on various dated but he did not disclose the dates on which he paid the said amount. 16. Though complainant mentioned that he gave cash loan of Rs.2,83,000.00 to the appellant on various dated but he did not disclose the dates on which he paid the said amount. 16. Complainant stated that he was running various kinds of businesses and had good numbers of vehicles including tripper and excavator which he used to let on settled rent to different persons and also let those two vehicles to the appellant on settled rent but complainant neither produced any document showing his business nor produced any document showing his ownership over the said two vehicles and such non production of documents raises a serious doubt in the case of the complainant. Being a businessman complainant is supposed to have maintained the account books showing his dealings with persons including the appellant and such account books ought to have been produced by the complainant and non production of the same creates a dent in the case of the complainant. 17. Complainant mentioned that accused admitted Rs. 6,00,000.00 in presence of Bapan Chandra Deb Roy, Chitta Ranjan Goswami, Manna Saha, Baban Das and Naresh Chandra Dhar as due to him but except Naresh Chandra Dhar, none was produced and this also creates a doubt. Witness Naresh Chandra Dhar(P.W.2) could not even say what was written in his examination-in chief and this raises a presumption that he was unknown about the existence of debt. 18. Further complainant in his cross-examination admitted that the cheques were not in his and writing nor they were in the handwriting of the appellant. On perusal of the Complaint petition it appears that complainant himself did not state what was the rent settled for use of the vehicles and what was the total rent accumulated rather he discovered the amount of Rs.4,00,000.00 on the basis of admission of the appellant before Bapan Chandra Deb Roy, Chitta Ranjan Goswami, Manna Saha, Baban Das and Naresh Chandra Dhar. [5] Based on such appreciation of the evidence, the Sessions Judge [the appellate court] has observed further that mere production of cheques cannot make the case of the complainant sacrosanct. In this respect, in the judgment it has been observed that a blank cheque, strictly speaking is not a cheque. In the present case, the writing of the cheques was not by the complainant or by the accused. In this respect, in the judgment it has been observed that a blank cheque, strictly speaking is not a cheque. In the present case, the writing of the cheques was not by the complainant or by the accused. The Sessions Judge has further observed that it is difficult to believe that without keeping any document duly signed by the accused, the complainant had rented out his two vehicles and advanced a loan of Rs.2,83,000/-. Those according to the appellate court, are ‘fatal infirmities so much so that it goes directly to the root of the case and shakes the very edifice on which the case of the complainant rests.’ [6] Mr. P. Majumder, learned counsel appearing for the appellant [the complainant] has quite robustly stated that on the basis of the letter of the Post Master, R.K. Pur HO [Exbt.16], the trial judge has correctly observed that the said document [Exbt.16] has proved the delivery of the demand notice to the hilt and no further evidence is required. Alternatively, he has submitted that since the complainant has proved that the registered letter was tendered in the correct address of the accused person, the presumption of service can be drawn under Section 27 of the General Clauses Act, 1897 read with Section 114 III (f) of the Indian Evidence Act. In support of his alternative submission, he has relied on the following decisions: [i] C.C. Alavi Haji v. Palapetty Muhammed and another, reported in (2007) 6 SCC 555 . [ii] Ajeet Seeds Limited v. K. Gopala Krishnaiah, reported in (2014) 12 SCC 685 . [iii] Rohitbhai Jivanlal Patel v. State of Gujarat and another, reported in AIR 2019 SC 1876 . [7] In all these decisions, the apex court has held that the notice sent by the registered post in the correct address if did not return unserved, the presumption of service of the said notice can be drawn. For purpose of reference, the relevant passages from C.C. Alavi Haji (supra) are reproduced hereunder: 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 “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, pre- paying 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. 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. 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 : (1992) 1 SCC 647 , State of M.P. v. Hiralal : (1996) 7 SCC 523 & Ors. and V.Raja Kumari v. P.Subbarama Naidu & 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 emphasise 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 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. [Emphasis added] [8] The resembling position has been restated in other two reports. Thus, Mr. Majumder, learned counsel has contended that the appellate court has committed serious error of law leading to the perverse finding of fact in respect of service of the demand notice. Service of the notice demanding payment of the cheque money is a condition precedent for taking cognizance of offence under Section 138 of the NI Act. Section 138 (b) of the NI Act reads as follows: (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; [abridged on consideration of relevance] [9] Thus, there is no escape from compliance of that condition. Hence, if it is not proved that the notice of demand in terms of Section 138(b) of the NI Act has been duly served on the accused person, the accusation of committing offence punishable under Section 138 of the NI Act shall fall through. The trial judge has observed that CW-1 has revealed that the demand notice was issued on 14.11.2015 through his advocate, by registered post. Exbt.16 i.e. the letter dated 29.02.2016 reveals that the accused person received the legal notice on 18.11.2015. The trial judge has observed that CW-1 has revealed that the demand notice was issued on 14.11.2015 through his advocate, by registered post. Exbt.16 i.e. the letter dated 29.02.2016 reveals that the accused person received the legal notice on 18.11.2015. This is the solitary basis of coming to the finding that the demand notice was received by the accused person. [10] On scrutiny of records, it appears that no letter dated 29.02.2016 has been brought in the evidence. Exbt.16 is the letter dated 23.01.2016 from the Postmaster, R.K. Pur HO. For purpose of reference, the entire text of the said letter is extracted below: To The Sub Postmaster Gakulpur Sub Post Office Udaipur-799114, Tripura No.A-1/CCC/Gnl/Pt.II/RKP January 23, 2016 Subject- Alleged non-receipt of Acknowledgement card by the sender- regarding Reference : Tracking update report 17.11.2015 Apropos to the captioned reference and subject kindly arrange to intimate the factual disposal of RK Pur HO RLAD RE434795527IN dated 14.11.2015 addressed to Biplab Debnath, Kupilong, Killa, Gakulpur-799114 sent by Smt. Sanghita Debnath, Advocate, Gomati District Bar Association, Udaipur. Tracking report revealed that the bag containing the article was received and opened by your office on 17.11.2015 at 11.26 hrs. You are, therefore, requested to kindly send disposal of the article alongwith attested photocopy of the delivery slip bearing the signature of the recipient, if any, direct to the sender under intimation to this office. Sd Illegible Postmaster Radhakishorepur HO Copy to: 1. Smt. Sanghita Debnath, Advocate, Gomati District Bar, Udaipur, Tripura for kind information. [11] It is apparent on bare reading of the said communication/letter dated 23.01.2016 [Exbt.16] that there is no content which confirms delivery of the notice to the respondent No.1. The material fact which surfaces from the said communication/letter is that the tracking report revealed that the bag containing the article [the registered letter] was received and opened by the office of the Sub-Postmaster, Gakulpur Sub Post- Office on 17.11.2015 at 11:26 hours. The said revelation cannot establish the fact of delivery. Hence, the finding of the trial judge is absolutely perverse which has emanated from misreading of the content of the communication/letter [Exbt.16]. Thus, the finding of the appellate court in this regard is well reasoned and does not warrant inference in an appeal challenging the order of acquittal. The said revelation cannot establish the fact of delivery. Hence, the finding of the trial judge is absolutely perverse which has emanated from misreading of the content of the communication/letter [Exbt.16]. Thus, the finding of the appellate court in this regard is well reasoned and does not warrant inference in an appeal challenging the order of acquittal. Further, from the testimony of the complainant [CW-1], the following facts have revealed: [a] The complainant has failed to give the details of place and time of purported agreement based on which he has claimed the rental value of his vehicle. The complainant has admitted that he did not submit any records relating to the business transactions. [b] The complainant has admitted that the cheques were not in his handwriting. Even the cheques were not in the handwriting of the accused person. [12] As stated earlier, the accused [the respondent No.1] has consistently held the position that he had never entered into any agreement with the complainant nor did he issue any cheques in favour of the complainant. Interestingly, DW-2 [Prabir Kumar Nandi] in his cross-examination has stated that for running the business of the accused there is no necessity of tipper or dodger. The accused used to run a carrying center. From scrutiny of the complaint, it further appears that the complainant’s case regarding the service of the demand notice, which is sine qua non for instituting a complaint under Section 138 of the NI Act, is that the complainant did not receive any information from the Sub- Postmaster, Gakulpur but later on, the complainant has asserted in the said complaint that by the letter dated 29.02.2016, Sub- Postmaster Gakulpur informed his counsel that the said registered letter addressed to the respondent No.1 was duly served on 18.11.2015. It has been also stated that a photocopy of the delivery slip was supplied to the complainant. But in the evidence, as already indicated, no such letter dated 29.02.2016 or the copy of the delivery slip are available. The foundational facts for presumption under Section 27 of the General Clauses Act read with Section 114 of the Indian Evidence Act are not available in the complaint. In this backdrop, this court is not inclined to interfere with the finding returned by the appellate court in respect of service of the demand notice. The foundational facts for presumption under Section 27 of the General Clauses Act read with Section 114 of the Indian Evidence Act are not available in the complaint. In this backdrop, this court is not inclined to interfere with the finding returned by the appellate court in respect of service of the demand notice. [13] Having observed thus, this court does not find any merit in this appeal filed by the complainant against the judgment dated 12.07.2018 and in the result, this appeal stands dismissed. LCRs be sent down forthwith.