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TMI Blog2020 (11) TMI 883X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. The explanation offered by the accused petitioner on the other hand is not founded on proof and it does not stand to reason. The object of statutory notice is to protect an honest drawer of the cheque by providing him a chance to make the fund sufficient in his bank account and correct his mistake. The accused petitioner could have availed this opportunity by accepting the demand notice instead of repeatedly avoiding its service. He could have accepted the notice and projected his case that he already made the repayment of the loan, had this case of him been true. Therefore, it can be safely held that the prosecution successfully discharged its burden in proving the case against the petitioner with the help of the statutory presumptions under the NI Act, and the accused has failed to rebut those presumptions and prove the contrary by offering provable explanation founded on proof. Service of notice - HELD THAT:- The complainant has led convincing evidence to prove that the postman visited the house of the accused at the known address on 4 dates. Every time the postman was told by the house inmates that he was out of station. The fact is proved by the report [Exbt.4 series] give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judge, the convict appellant, being petitioner, has filed the present Criminal Revision Petition. [3] The basic facts necessary for disposal of the petition are that the present petitioner and the respondent were known to each other and they were on good terms. The present petitioner used to borrow money from the respondent frequently to meet his financial needs and he used to repay such loan in time. On 15.01.2014 he took a loan of ₹ 3,50,000/-(Three lakhs fifty thousand)from the respondent and promised to repay the money within 30.11.2014. The money not being repaid in time, the respondent approached the petitioner on 13.12.2014 and requested him for an early repayment of the same. Pursuant to such request, the present petitioner issued Cheque no.418431 dated 13.12.2014 on Tripura Gramin Bank for an amount of ₹ 3,50,000/-(Three lakhs fifty thousand) in the name of the respondent. On the same day the respondent presented the cheque for collection at Central Bank, Udaipur branch at Udaipur where he had an account and the said cheque was returned on 15.12.2014 with an endorsement insufficient funds . [4] A demand notice was then issued by the respondent to the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urn memo, and Exbt.4(series) is the demand notice dated 30.12.2014 including the envelope containing the postal receipts and report of the postman. Statement of the accused was recorded under Section 313 Cr.P.C at the conclusion of the prosecution evidence. In reply, the accused petitioner claimed that the entire prosecution evidence appearing against him was false and he declined to adduce any evidence on his defence. [8] Having appreciated the evidence, both oral and documentary, adduced by the complainant-respondent, the learned trial court, after hearing the parties at length and considering the submissions made on their behalf, recorded the following findings in paragraph 18 of its judgment: 18. In this case, from the trend of cross examination, I find, the accused took the plea that the accused given a blank cheque in favour of the complainant as a security of loan amount and after payment of loan money the complainant did not return the said cheque and thereafter the complainant falsely filled up the blank cheque and filed this false case. The above mentioned plea is not a legal plea but a plea of fact and required to be proved by evidence. In this case, the accused failed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fine of ₹ 4,00,000/- (Four lakhs only) and in default to pay the fine, shall suffer simple imprisonment for 6 (six) months. The fine money, if realized or paid, shall be disbursed to the respondent no.1, Sri Tanmoy Krishna Das. With these observations the appeal is disposed of on contest. [12] I have heard Mr. S.Lodh, learned counsel appearing for the petitioner as well as Mr. Samar Das, learned counsel appearing for private respondent no.01 and Mr. S.Debnath, learned Addl. PP appearing for the state respondent. [13] It has been mainly canvassed on behalf of the petitioner that the learned trial court failed to appreciate the evidence as well as the grounds of objection raised by the accused petitioner and erroneously found the petitioner guilty. It is submitted on behalf of the petitioner that the learned trial court did not appreciate that the complainant-respondent could not prove any debt or liability against the accused petitioner. According to learned counsel for the petitioner, the courts below did not also consider the submission of the accused that the cheque in question was never issued by the accused petitioner in discharge of any debt or liability, but only a bla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Rao vs. Thavikonda Ramulu Firm and Ors. reported in (2008) 7 SCC 655. (iii) Kishan Rao vs. Shankargouda reported in (2018) 8 SCC 165 (iv) Benu Roy vs. Rajib Ghosh reported in (2018) 2 TLR 463 [16] It is submitted by Mr.S.Das, learned counsel for the respondent that apart from making mere denial of the existence of debt or liability, the accused did not lead any evidence to prove that he had no debt or legal liability to be discharged and as such the learned courts below had drawn the statutory presumptions against him. As a result, the learned courts below did not commit any error in finding him guilty for the offence under Section 138 NI Act. It is, therefore, submitted by learned counsel that the judgments of the courts below do not call for any interference in this criminal revision petition. [17] To reiterate the facts, the complainant respondent in the course of trial examined himself as PW-1 and he stated that the accused borrowed a loan of ₹ 3,50,000/- from him on 15.01.2014 and promised to repay the loan within 30.11.2014 in presence of PW-2 PW-3. When he failed to repay the loan within the stipulated time, the complainant respondent approached him on 13.12.2014 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the complainant was their neighbour. Both of the PWs denied such suggestion. [20] Section 138, NI Act requires proof of the essential ingredients viz.,(i) there is a legally enforceable debt; (ii) a cheque is drawn on an account maintained by the accused with his banker for payment of any amount to another person from his account in discharge in whole or in part of the debt or liability; and (iii) the cheque is returned by the bank unpaid, either because of insufficient fund in the account of the accused to honour the cheque or that the cheque amount exceeds the amount arranged to be paid from that account by an agreement made with the bank. [21] As far as the petitioner s defence was concerned, he did not deny the fact that he borrowed loan of ₹ 3,50,000/- from the complainant respondent. He did not also deny the execution of the cheque in question which is Exbt.1. He tried to defend his case merely by offering an explanation by throwing suggestion to the PWs in their cross examination that he gave a blank signed cheque to the complainant as a security for loan taken by him and since he did not take back the cheque after repaying the loan, the complainant respondent misused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uired to form the basis of a presumption of law exist, no discretion is left with the Court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists . Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the 'prudent man'. [23] Similarly, in the case of Mallavarapu Kasivisweswara Rao (supra) it has been held by the Apex Court that it is a settled position that the initial burden lies on the accused to prove the non existence of consideration. The relevant passage from the judgment may be gainfully reproduced which is as under: 17. Under Section 118(a) of the Negotiable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist... [26] The learned counsel of the accused petitioner has also placed reliance on the decision of this High Court in the case of Benu Roy (supra) in which this High Court following the law laid down by the Apex Court in Hiten P.Dalal(supra) held that unless the explanation offered by the accused with regard to non existence of debt is supported by proof, the statutory presumptions under the NI Act as to the debt cannot be said to have been rebutted. In this regard the following observation was made by this High Court in the case of Benu Roy: 55. That is how the Apex Court in Hiten P. Dalal (supra) has distinguished between two situations. It is not general presumption under Section 114 of the Evidence Act, it is a presumption under Section 139 read with rule of evidence as provided under Section 118 of the NI Act. The presumption has to be very direct and of such nature that the fact that has been laid has to be trusted by a prudent person. It must be supported by reliable materials. A reasonable man would act on the supposi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demand notice instead of repeatedly avoiding its service. He could have accepted the notice and projected his case that he already made the repayment of the loan, had this case of him been true. Therefore, it can be safely held that the prosecution successfully discharged its burden in proving the case against the petitioner with the help of the statutory presumptions under the NI Act, and the accused has failed to rebut those presumptions and prove the contrary by offering provable explanation founded on proof. [29] With regard to the objection raised by the accused petitioner regarding the service of the statutory demand notice, learned counsel of the complainant has relied on the decision of this High Court in the case of Keshab Banik(supra) wherein this High Court has held that the notice, duly directed, shall serve the purpose of law. [30] In the case of Jayanta Banik(supra) which has also been relied upon by learned counsel for the respondent, this High Court with reference to the earlier decision of Keshab Banik(supra) has laid down the same principle that once the notice is dispatched, part of the payee is over and, the next depends on what the sendee does. Observation of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t show that the payee has the statutory obligation to make a demand by giving notice. The thrust in the clause is on the need to make a demand . It is only the mode for making such demand which the legislature has prescribed. A payee can send the notice for doing his part for giving the notice. Once it is dispatched his part is over and the next depends on what the sendee does. 12. It is well settled that a notice refused to be accepted by the addressee can be presumed to have been served on him (vide Harcharan Singh Vs. Smt. Shivrani and Others, and Jagdish Singh Vs. Natthu Singh, . 13. Here the notice is returned as addressee being not found and not as refused. Will there be any significant difference between the two so far as the presumption of service is concerned? In this connection a reference to Section 27 of the General Clauses Act, 1897 will be useful. The section reads thus: 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 expression 'give' or 'send' or any other expression is used, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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