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Tripura High Court · body

2022 DIGILAW 33 (TRI)

Kamal Kumar Deb v. Bhramar Singh

2022-01-20

ARINDAM LODH

body2022
JUDGMENT 1. This is an appeal arises out of judgment of acquittal dated 28.06.2019, passed by learned Chief Judicial Magistrate, North Tripura, Dharmanagar in connection with Case No. CR(NI) 20/2012. 2. Briefly stated, that the complainant-appellant [here-in-after referred to as the complainant] filed a complaint against the respondent under Section 138 of the N.I. Act, 1881 [here-in-after referred to as the NI Act] in the court of the Sub-Divisional Judicial Magistratre, Dharmanagar, North Tripura which was registered as CR (NI) No.20 of 2012. The main allegation contained in the said complaint was that the respondent borrowed an amount of Rs.2,50,000/- from the complainant on 26.04.2010 with a condition to refund the same within a period of three months. But, the respondent did not refund the said money to the complainant within time. The respondent ultimately issued a cheque on 26.07.2011 in the name of the complainant. When the said cheque was deposited for encashment of the bank account on 23.12.2011, it was dishonoured with the remark that the account was closed. Thereafter, the complainant served notice dated 03.01.2012 upon the respondent for payment of the said amount, but, it did not yield any result. 3. Having heard the learned counsels appearing for the parties, learned Chief Judicial Magistrate, North Tripura, Dharmanagar, had acquitted the respondent vide judgment dated 28.06.2019 with the finding that the complainant had failed to prove his case beyond all reasonable doubt. 4. Being aggrieved by and dissatisfied with the said judgment of acquittal, dated 28.06.2019, the complainant has filed the instant appeal before this court. 5. I have heard Mr. S. M. Chakraborty, learned Sr. counsel assisted by Mrs. P. Chakraborty, learned counsel appearing for the complainant and Mr. S. Lodh, learned counsel appearing for the respondent. 6. I have perused the judgment passed by the learned Chief Judicial Magistrate. Learned Chief Judicial Magistrate had formulated the following point for determination: 'Whether the accused issued one Cheque bearing No.CAO 00/137 317417 dt. 26.07.2011 to the complainant for an amount of Rs.2,50,000/- in discharge of his liabilities which was subsequently dishonoured for closure of the bank account of the accused, as the complainant presented the same for encashment and that after receipt of appropriate legal notice, the accused failed to repay the amount within the stipulated period and that he thereby committed an offence punishable under Section 138 of the Negotiable Instruments Act?' 7. While dismissing the complaint, learned Chief Judicial Magistrate held that the complainant had failed to prove that he had any enforceable debt to the respondent. Learned Magistrate further held that the statutory notice [Exbt.4] as contemplated under Section 138 of NI Act was not properly served upon the respondent. 8. Assailing the aforesaid findings recorded by learned CJM, Mr. Chakraborty, learned Sr. counsel, at the very outset, has taken up the point whether the notice was properly served upon the respondent or not. According to learned Sr. counsel, in the instant case, since notice was served upon the wife of respondent, that would be deemed to be effected upon the respondent himself who was the drawer of the cheque. In support of his submission, Mr. Chakraborty, learned Sr. counsel has invited my attention to Section 27 of the General Clauses Act, which reads as under:- '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.' 9. I have taken up this issue before I advert to the merits of the decision of learned Chief Judicial Magistrate in respect of the finding that the complainant had no enforceable debt to the respondent. 10. On the point regarding service of notice, Mr. Lodh, learned counsel appearing for the respondent submitted that notice was not properly served upon the respondent inconsonance with the essential requirements of Clause (b) of Section 138 of the NI Act. According to learned counsel for the respondent, since notice was served upon the wife of the respondent and not upon the drawer of the cheque himself, it was not a proper service as contemplated in Clause (b) of Section 138 of the NI Act. On bare perusal of the Section 138(b), I find force in the said submission of Mr. Lodh, learned counsel for the respondent. 11. On bare perusal of the Section 138(b), I find force in the said submission of Mr. Lodh, learned counsel for the respondent. 11. Here, it would be apposite to have a look at Section 138 of the NI Act, which reads as under: 138. Dishonour of cheque for insufficiency, etc., of funds in the account. -Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (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; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.' 12. On plain reading of Clause (b) of Section 138 of the NI Act, it becomes aptly clear that it mandates the payee or the holder in due course of the cheque to raise a demand for payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. The Legislatures in their own wisdom employed the language in Clause (b) that the notice had to be served to the drawer of the cheque. Now, if I read Clause (b) of Section 138 of the NI Act with the expression used in Section 27 of the General Clauses Act, then, it comes to fore that where any Central Act made after the commencement of the General Clauses 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 to the addressee unless the contrary is proved. Here the language employed by the Legislature that 'unless a different intention appears' appears to be very significant.' As I said earlier, the language used in Clause (b) of Section 138 of the NI Act that the notice is to be served to the drawer of the cheque clearly depicts a different legislative intention that the notice has to be served upon none but only to the drawer of the cheque since the language is very clear and unambiguous. Moreso, in the instant case, admittedly the wife, but, not the drawer of the cheque had received the notice issued by the holder of the cheque i.e. the complainant. Thus, the presumption of receipt of notice by the addressee as contemplated under Section 27 of the General Clauses Act cannot have any application in regard to presumption of service of notice and receipt of the same by the drawer of the cheque as contemplated in Clause (b) of Section 138 of the NI Act. 13. The above view of mine is further reinforced when Mr. 13. The above view of mine is further reinforced when Mr. Lodh, learned counsel for the respondent has pressed into service the decision of the Hon'ble Supreme Court in the case of M.D.Thomas v. P.S. Jaleel & Anr., (2009) 14 SCC 398 where dealing with the similar issue, the Hon'ble Supreme Court held that:- '5. Section 138 deals with the dishonour of cheque for insufficiency, etc., of funds in the accounts of the person who draws the cheque and lays down that such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both. 6. Proviso to Section 138 specifies the conditions which are required to be satisfied before a person can be convicted for an offence enumerated in the substantive part of the section. Clause (b) of the proviso to Section 138 cast on the payee or the holder in due course of the cheque, as the case may be, a duty to make a demand for 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. 7. In the present case, the notice of demand was served upon the wife of the appellant and not the appellant. Therefore, there is no escape from the conclusion that complainant-respondent had not complied with the requirement of giving notice in terms of Clause (b) of proviso to Section 138 of the Act. Unfortunately, the High Court overlooked this important lacuna in the complainant's case. Therefore, the conviction of the appellant cannot be sustained.' 14. In the case, cited supra, the Hon'ble Supreme Court has clearly held that the notice of demand being served upon the wife of the respondent and not the respondent was not a proper service due to non-compliance of the requirements of giving notice in terms of Clause (b) of proviso to Section 138 of the NI Act. 15. Having gone through the judgment of M.D.Thomas (supra), Mr. Chakraborty, learned Sr. 15. Having gone through the judgment of M.D.Thomas (supra), Mr. Chakraborty, learned Sr. counsel has fairly submitted that there is no escape from the conclusion that complainant did not comply with the requirement of Section 138 of the Act since the demand notice was not served upon the drawer of the cheque, as contemplated under Clause (b) of Section 138 of NI Act. 16. In view of above legal position and the conclusion arrived at by this court, I do not deem it imperative to proceed further to decide the point whether the complainant had an enforceable debt to the respondent. 17. In the result, the appeal fails. The judgment and order of acquittal of the respondent passed by the learned trial court stand affirmed and upheld.