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2017 (8) TMI 1013 - HC - Indian LawsComplaint maintainable under Section 138 of the NI Act - non issuance of statutory notice - Held that - In the case in hand, admittedly, there was a notice on 21.11.2007 and the said notice was received by the responsible sub-staff or assistant of the petitioner s house/family on 22.11.2007. Therefore, absolutely there is no ground to show that there was no notice statutorily issued by the respondent and as such, notice was not served on the accused persons including the petitioner. In the matter of cheque dishonoured cases under Section 138 of the NI Act, the law has marched well and in fact, it has been settled. The presumption under Section 139 of the Act, is always in favour of the complainant. Though it is a rebuttable presumption, the rebuttal has to come from the accused side, and the same must be an acceptable rebuttal. The petitioner/accused did not bring any rebuttable presumption as the presumption has already been in favour of the complainant and against the accused within the meaning of Section 138/139 of the NI Act. Therefore, this Court finds that there is no ground to interfere with the order of the trial Court, as has been confirmed by the order of the First Appellate Court. Quantum of sentence is concerned, the Court below has sentenced the accused to undergo Simple Imprisonment for six months and had directed the petitioner/accused to pay the cheque amount as compensation in terms of Section 255(2) of the Code of Criminal Procedure. The petitioner is a woman, considering the said factor, though the Court is empowered to punish the accused under Section 138 of the NI Act, to an extent of two years maximum punishment, this Court is of the view that the punishment given by the Trial Court as confirmed by the First Appellate Court, can be modified to the extent that the petitioner/accused is convicted and sentenced to undergo Simple Imprisonment for a period of three months. Quantum of compensation is concerned, since the loan amount was ₹ 10 lakhs and as a part payment, the cheque was issued by the petitioner for a sum of ₹ 9,25,000/- only, this Court feels that the said compensation, equal to the cheque amount is not on the higher side and therefore, such compensation does not warrant any interference.
Issues Involved:
1. Validity of statutory notice under Section 138 of the Negotiable Instruments Act. 2. Presumption of service of notice. 3. Existence of legally enforceable debt. 4. Quantum of sentence and compensation. Detailed Analysis: 1. Validity of statutory notice under Section 138 of the Negotiable Instruments Act: The primary defence raised by the petitioner was the alleged non-issuance of a statutory notice as required under Section 138 of the NI Act. The petitioner argued that the notice was not individually sent to each accused and was not properly served. The court examined the notice dated 21.11.2007 and the postal acknowledgment card, which indicated that the notice was sent to all three accused at their address and was received by a person named Elumalai, identified as the security guard at the petitioner’s house. The court concluded that the notice was properly addressed and served, thereby fulfilling the statutory requirement under Section 138 of the NI Act. 2. Presumption of service of notice: The court relied on the legal principle established in the judgments of the Supreme Court, particularly in C.C. Alavi Haji vs Palapetty Muhammed & Another (2007) and M/s. Ajeet Seeds Ltd. v. K. Gopala Krishnaiah (2014), which state that if a notice is sent by registered post with the correct address, service is presumed unless proven otherwise. The court emphasized that the presumption under Section 27 of the General Clauses Act and Section 114 of the Evidence Act applies, and the burden is on the accused to prove non-service. The court found no evidence to rebut this presumption, thus affirming the service of notice. 3. Existence of legally enforceable debt: The petitioner admitted the issuance of the cheque and her signature on it but contended that the cheque was obtained under coercion. The court noted that no evidence was provided to support this claim. The court reiterated the principle from Rangappa v. Sri Mohan (2010), which holds that the presumption under Section 139 of the NI Act includes the existence of a legally enforceable debt or liability. Since the petitioner failed to provide a rebuttable presumption, the court upheld the presumption in favor of the complainant. 4. Quantum of sentence and compensation: The trial court sentenced the petitioner to six months of simple imprisonment and directed her to pay the cheque amount as compensation. Considering the petitioner’s status as a woman, the High Court modified the sentence to three months of simple imprisonment while maintaining the compensation amount of ?9,25,000/-. The court found the compensation appropriate given that the original loan amount was ?10,00,000/- and the cheque was part payment. Conclusion: The High Court dismissed the Criminal Revision Case, affirming the trial court's judgment with a modification in the imprisonment term. The trial court was directed to secure the petitioner to undergo the modified punishment. The connected Miscellaneous Petitions were also closed.
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