2004 (12) TMI 725 - HC - Indian Laws

Summary

Issues Involved:
1. Authority of the complainant's Managing Director to file the complaint.
2. Proper service of the legal notice to the accused.
3. Presumption of the cheque being issued for discharge of debt or liability under Section 139 of the Negotiable Instruments Act.

Detailed Analysis:

1. Authority of the Complainant's Managing Director to File the Complaint:
The complainant's Managing Director, P.W. 1, Deepali Kumar, filed the complaint pursuant to a resolution passed by the Board of Directors. The learned Judicial Magistrate, First Class, initially held that P.W. 1 had no authority to file the complaint or depose on behalf of the company. However, this was contested by the complainant's counsel, citing the Supreme Court's decision in M/s. M.M.T.C. Ltd. & another v. M/s. Medchl Chemicals and Pharma (P.) Ltd., which clarified that anyone could set the criminal law in motion by filing a complaint of facts constituting an offence before a Magistrate entitled to take cognizance. The court concluded that the complaint was validly filed by the company's Managing Director, thus the complaint could not be dismissed for lack of authority.

2. Proper Service of the Legal Notice to the Accused:
The complainant issued a legal notice to the accused by Registered Post A.D., which was returned with endorsements "intimated" and "out of station return to sender." The complainant argued that there was a presumption of due service once the notice was sent to the registered address of the accused, a presumption not rebutted by the accused. The court referred to several judgments, including K. Bhaskaran v. Sankaran Vaidhyan Balan, which established that if a notice is sent to the correct address, it is deemed served unless proven otherwise by the addressee. The court held that the accused failed to rebut this presumption and that the learned Judicial Magistrate, First Class, erred in dismissing the complaint for want of service of notice.

3. Presumption of the Cheque Being Issued for Discharge of Debt or Liability:
The complainant's case relied on the presumption under Section 139 of the Negotiable Instruments Act that the cheque was issued for the discharge of debt or liability. The accused contended that the cheque was issued as security and not for any liability. The court noted that the presumption under Section 139 is rebuttable and can be challenged by the accused through evidence or cross-examination. The accused demonstrated through cross-examination that there was an ongoing dispute regarding payments owed by the complainant to the accused, and that the cheque was given as security. P.W. 1, Deepali, admitted that the cheque was given as security for a loan, not in repayment of a specific debt. The court concluded that the accused successfully rebutted the presumption of liability and that the complainant was not justified in presenting the cheque for payment.

Conclusion:
The appeal was dismissed, upholding the acquittal of the accused. The court found no merit in the appeal, affirming that the accused had successfully rebutted the presumption of liability and that the complaint was not dismissed for lack of authority or improper service of notice.