2015 (9) TMI 1728 - HC - Indian Laws

Dishonor of Cheque - discharge of existing liability or not - acquittal of accused - there are no endorsement on the postal department on the A.D. cards - evidence of service of notice - HELD THAT - It is true that the statement made under Section 313 Cr.P.C. is not evidence. It is only the stand of the accused or version by way of explanation when incriminating materials appearing against him are brought to his notice as decided by the Apex Court in Devender Kumar Singla 2004 (2) TMI 705 - SUPREME COURT . In that decision it was further held that absence of any suggestion during cross-examination cannot be made up by a statement under Section 313 Cr.P.C. as at stage the prosecution does not get an opportunity to question the accused about his stand in the statement under Section 313 Cr.P.C. Whether the accused respondent in his cross-examination countered the issuance of notice issued by the Advocate of the complainant appellant? - HELD THAT - This court is of the clear view that the accused appellant duly signed those A/D cards and as such he duly received the original notices, the photo copies of which were marked as X series for identification. It is true that photocopies are inadmissible in evidence, unless admitted, but in the instant case there was no question of production of the originals as those were in the possession of the accused respondent. As he denied the receipt of the notice there was no question of issuance of notice on him to produce the originals. This court is satisfied that the cheques (Ext.-3 series) were issued in discharge of existing liability, that the cheques bounced for different reasons as per bank memos (not in dispute) and that the notices under Section 138B were duly received by the accused respondent. Thus the judgment of acquittal passed by the trial court is fit to be reversed. Hence the respondent Dolon Adhikari is found guilty in respect of the charge punishable under Section 138 of the N.I. Act. The cheque amount was Rs. 1,40,500/- and all those were issued in the year 2010/2011. Thus, more or less five years have passed in this legal battle. The appellant is to be duly compensated. Thus, considering every aspect the accused appellant is sentenced to suffer R.I. for ten days and also to pay compensation amount under Section 357(3) of the Cr.P.C. to the tune of Rs. 1,81,000/- to be paid to the present appellant. Such compensation must be paid within one month from this day - the accused respondent must surrender before the learned trial court to serve out the sentence within 30 days from this day, failure to surrender on the part of the appellant will lead to issuance of warrant of arrest as against him by the learned trial court. Appeal allowed.

Summary

Issues Involved:
1. Acquittal of the accused under Section 138 of the Negotiable Instruments Act, 1881.
2. Validity of the service of notice under Section 138B of the N.I. Act.
3. Existing liability and professional money lending status of the complainant.
4. Examination of evidence and comparison of signatures on A/D cards.
5. Reversal of the trial court's judgment and sentencing.

Detailed Analysis:

1. Acquittal of the Accused under Section 138 of the N.I. Act:
The appeal was against the judgment and order of acquittal dated 28.06.2013 by the Judicial Magistrate, Sealdah, in complaint case No. 86 of 2011. The trial court acquitted the accused on the grounds that the notices were not served as the A/D cards did not bear any postal stamp and no receipt from the postal department was filed.

2. Validity of the Service of Notice under Section 138B of the N.I. Act:
The appellant argued that the trial court should not have relied heavily on the accused's denial of receipt of notice under Section 313 of the Cr.P.C. The appellant cited several Supreme Court decisions, including *Devender Kumar Singla v. Baldev Krishan Singla* and *M/s. Indo Automobiles v. M/s. Jai Durga Enterprises & Ors.*, which held that once a notice is sent by registered post to the correct address, it must be presumed to have been served. The trial court, however, found that the notices were not served due to lack of postal endorsement on the A/D cards.

3. Existing Liability and Professional Money Lending Status of the Complainant:
The trial court held in favor of the appellant that the complainant was not a professional money lender and that the cheques were issued in discharge of existing liability. The accused failed to prove that he had paid the amount mentioned in the cheques. The respondent's counsel argued that the notices issued were not proved and that there was no existing liability on the part of the accused, which is essential under Section 138 of the N.I. Act.

4. Examination of Evidence and Comparison of Signatures on A/D Cards:
The trial court did not compare the signatures on the A/D cards with the admitted signatures of the respondent. The High Court compared the signatures on the A/D cards with the admitted signatures on the cheques, letter to the banker, bail bonds, and vakalatnamas, and concluded that the signatures matched. Thus, the claim that the respondent did not sign the A/D cards was found to be false.

5. Reversal of the Trial Court's Judgment and Sentencing:
The High Court held that the accused had duly received the notices and that the cheques were issued in discharge of existing liability. The judgment of acquittal by the trial court was reversed. The respondent was found guilty under Section 138 of the N.I. Act and was sentenced to rigorous imprisonment for ten days and to pay compensation of Rs. 1,81,000/- to the appellant within one month, failing which he would have to suffer further rigorous imprisonment for one year.

Conclusion:
The appeal was allowed, and the respondent was found guilty under Section 138 of the N.I. Act. The respondent was ordered to surrender before the trial court within 30 days to serve the sentence, failing which a warrant of arrest would be issued. The case was remanded to the trial court for necessary action.