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TMI Blog2021 (1) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... rmission of BMRDA of additional school room for the exiting school. The accused assured the complainant that he would get the land converted with the permission of concerned authorities. The complainant delivered necessary documents and made payments through UTI Bank to the accused and the accused failed to get the complainant's land converted as promised by him. He continued to receive the payments from the complainant and did not put any effort to get the conversion of land. The complainant came to know that the accused has not made any efforts and requested to return the payments paid towards the Government fee and commission. The accused was due to pay a sum of Rs. 7,69,200/- and the accused issued a cheque bearing No.836761 dated 27.05.2007 for a sum of Rs. 7,32,000/- drawn on ICICI Bank, Indira Nagar Branch, Bengaluru. He had promised and assured that the cheque would be honoured. When the same was presented, it was dishonoured with an endorsement "Funds insufficient". The complainant issued a legal notice to the address of the accused both by way of RPAD and UCP. The notice sent to the accused returned as "Addressee Left" dated 9.6.2007. The accused is deemed to have rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused for conversion of the land and in spite of the claim of the complainant that it was an oral agreement, the Trial Judge has committed an error in coming to the conclusion that no document is produced to substantiate the work entrusted to the accused. 6. The other contention of the accused is that the cheque had been forged and the trial Judge failed to take note of the fact that the said cheque has not been sent for any handwriting expert and also no steps was taken to lodge any complaint against the complainant and also not given any stop payment for the said cheque and in spite of the same the Trial judge has committed an error. 7. It is the claim of the accused that he gave the cheque to Mr. Girish Nivas and he has not been examined before the Trial Court by the complainant and there was no requirement to examine the estate manager. 8. Learned counsel appearing for the appellant/complainant, in his arguments vehemently contend that the work entrusted to the accused for conversion of the land is only an oral entrustment of the work and it is not the case of the complainant that a document came into existence. When such being the case, the Trial Court ought not to have com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould submit that there is statutory presumption that the cheque is issued in discharge of a legally enforceable debt or liability. The Apex Court also held in the Judgment that presumption is a rebuttable one, if the issuer of the cheque is able to discharge the burden that it was issued for some other purpose like security for a loan. 12. The learned counsel relying upon the judgment of the Madhya Pradesh High Court in the case of Sadhna Pandey v. Prakash Chand Jain reported in MANU/MP/1090/2014, she drew the attention of this Court to paragraph No.4 of the Judgment, discussed with regard to not giving any reply to the notice of the complainant and also the Court observed that when the banker of the applicant itself has not dishonoured the cheque on the ground of difference of the signature then, the applicant/accused would not take such defense. The learned counsel referring to this Judgment would contend that the endorsement issued by the Bank is not on account of any mismatch of the signature. When such being the case, the accused cannot contend that the signature of the accused was forged by the complainant. 13. The learned counsel relying upon the judgment of this Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... copy of the complaint under Section 138 of the NI Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the General Clauses Act and Section 114 of the Evidence Act. It is held that any other interpretation of the proviso would defeat the very object of the legislation. It is also observed in K. Bhaskaran v. Sankaran Vaidhyan Balan and Anr. (MANU/SC/0625/1999), if giving of notice in the context of Clause (b) of the proviso was the same as the receipt of notice a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the NI Act. 16. The learned counsel relying upon the judgment of the Apex Court in the case of K.N. Beena v. Muniyappan and Ors. reported in MANU/SC/0661/2001, she brought to the notice of this Court, paragraph No.7 of the Judgment and referring to the same, she would submit that the burden of proving consideration for a dishonoured cheque is on the complainant, is erroneous. Learned Judge had lost sight of Sections 118 and 139 of the NI Act. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and also erred in coming to the conclusion that the notice was not served on him in spite of the very documents relied upon by the accused himself discloses the said address. 22. The learned counsel also would submit that the complainant has not produced the postal cover addressed for sending the cheques to the complainant. The other observation that the cheque issued without signature itself creates a doubt regarding the case put forth by the complainant and it is the specific case of the complainant that the accused mischievously sent the cheque without the signature. The trial judge failed to consider the fact that the accused has not rebutted the case of the complainant and in spite of the same acquitted the accused erroneously. Hence, it requires an interference of this Court. 23. Per contra, learned counsel appearing for the accused vehemently contend that there is no documentary evidence with regard to the service of notice. The learned counsel would submit that with regard to the service work entrusted to the accused in respect of the generator is not in dispute. The complainant has not furnished any material for having paid the service charges and the complainant has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e considering the oral evidence, this Court would like to refer to the contents of the complaint and on perusal of the complaint, the complainant has contended in the complaint that the accused had claimed that he had expertise and contacts in matters of land conversion. Hence, the complainant availed the services of the accused and paid the amount of Rs. 7,69,200/- towards the Government Conversion fee and commission to handle the entire process of conversion of lands of this School. When he did not do any work of conversion in discharge of the liability, he gave the cheque and the same was dishonoured. 28. The complainant in order to substantiate his contention examined the financial controller and authorised signatory of the complainant school as P.W.1. P.W.1 reiterated the averments of the complaint in the affidavit and got marked the documents as Exs.P1 to P11. P.W.1 was subjected to cross- examination. In the cross-examination, he admits that the accused being the qualified person with regard to generators and he contacted him. It is also elicited that the accused has not given in writing regarding conversion and his consent agreeing to do the conversion work. But they have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g services to the Complainant- School in the month of June 2007. It is elicited that in the Ex.P9- Postal envelope, there is a shara that the same was returned to the sender as 'addressee left'. It is suggested that Exs.P4 and P11 are mis-used and tampered by the complainant-school authorities for the purpose of this complaint by forging the signatures of the accused and the same was denied. 29. The accused in his evidence in the affidavit would contend that he has issued two blank cheques to the school authorities to get the contract work and the same were taken as security for his work and he has terminated his contract with the complainant since May 2007. It is also his evidence that the signature appears on cheque-Ex.P11 is not belongs to him and also he does not know how the complainant has arrived for an amount of Rs. 7,32,000/- in spite of the payment made Rs. 8,83,800/- in terms of Ex.P3 in his favour. It is also his evidence that he shifted his business in March 2006 to another place and no notice was served on him. Ex.P3 is the self-attested statement of the complainant and he is operating his business from 25.03.2006 in different place. He has produced the docum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to convert the School land and the same was denied and the suggestion was made that the complainant has paid the conversion charges of Rs. 7,69,000/- on his assurance that conversion work will be completed within time and the suggestions are denied. 31. Having perused both oral and documentary evidence, this Court has to examine the material available on record in consonance with the principles laid down in the Judgments referred supra by the complainant's Counsel. 32. Regarding issuance of notice is concerned, Ex.P6 is the notice addressed to the accused in respect of the address mentioned as No.64, Krishnappa Building, Motappanapalya, Indira Nagar, Bengaluru-560 038. The said notice is dated 6.6.2007. The complainant in order to substantiate the issuance of notice relied upon Exs.P7 and P8-Registered Postal Receipts and also the Certificate of Posting in respect of the very same address. Exs.P9 and P10 are the returned postal covers in respect of the very same address, which were written as 'addressee left'. 33. The learned counsel appearing for the complainant would submit that the document relied upon by the accused himself, particularly, Ex.D1 is dated 25.3.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that no notice was served on him cannot be accepted. The Trial Judge has committed an error in coming to the conclusion that notice was not served on him without considering the admission of DW.1 and also the documentary proof-Exs.D5 and D7. The postal receipt discloses that the notice also sent through Under Certificate of Posting and hence the principles laid down in the judgment of the Apex Court in C.C. Alavi Haji's case (supra), is aptly applicable to the case on hand invoking Section 27 of the General Clauses Act and Section 114 of the Evidence Act. 36. The very defense of the accused is that he gave the said two cheques without signing the same as security and the said contention also cannot be accepted for the reason that no person will accept the cheques without the signature for security. It is also important to note that in the cross- examination, he categorically admits that he has not given any complaint when the cheque of the accused is forged in respect of Ex.P4(a) and he says the signature on Ex.P4 is not of him and also not taken any legal action against the complainant for forging of his signature on Ex.P1. It is also important to note that he claims that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral and documentary evidence, no dispute with regard to payment of Rs. 8,83,800/- and only contention of the accused is that the said payment was made towards the services he has rendered and having rendered his services also, he relied upon exhibit 'D' series and I have already pointed out that it will not exceed to the tune of Rs. 1,43,563/-. It is also important to note that when the accused takes the defense that he has not signed the cheques, no legal action was taken against him and also it is important to note that he has not given any reply notice. Though he contends that the notice was not served, this Court referring to the documents had already come to the conclusion that notice was given but he has not given any reply when the reply was not given by the accused, the very principles laid down in the judgments referred supra by the Apex Court with regard to the General Clauses Act as well as the service of summons when the accused did not pay the amount within 15 days, the Court has to draw the presumption though the accused denies the signature on Ex.P4(a) and on perusal of Ex.P4, the handwriting as well as signature are all signed by him and written by him with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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