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TMI Blog2015 (7) TMI 1373X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the appellant for encashment on 25/04/2011, the same was dishonoured, which was intimated to the appellant on 30/04/2011. Thereafter, the appellant issued a statutory notice on 14/05/2011, which was not claimed by the first respondent as per the endorsement dated 24/05/2011. The intimation about the refusal was left at the house of the appellant on 01/06/2011. However, the appellant was at Mumbai for a week and eventually, collected the envelope on 11/06/2011 and thereafter, filed the complaint under Section 138 of Act before the learned Magistrate on 13/07/2011. 3. At the trial, the appellant examined himself and produced documents, including the subject cheque, the notice and envelope, which was returned as not claimed. The first respondent did not lead any evidence in defence. The learned Magistrate, by the judgment and order dated 29/11/2012, dismissed the complaint, acquitting the first respondent. Feeling aggrieved, the complainant is before this Court. 4. I have heard Shri Usgaonkar, the learned Counsel for the appellant and Shri Redkar, the learned Counsel for the first respondent. With the assistance of the learned Counsel, I have perused the evidence and the impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch was never done, cannot be accepted. He submitted that the first respondent ought to have shown that indeed he owns property and he is in the business of developing the same. He submitted that the defence itself is improbable as a person in the business of developing property would not have approached, seeking financial assistance. It is submitted that the first respondent had even shown willingness to deposit Rs. 2 Lakhs before the Magistrate vide an application dated 23/07/2012 which would show that the first respondent had admitted his liability. The learned Counsel has placed reliance on the decision in the case of Rangappa Vs. Mohan, reported in AIR 2010 SC 1898, Krishna P. Morajkar Vs. Joe Domnic Ferrao Anr. reported in 2014(2) Bom.C.R. (Cri.) 738 and Krishna Janardan Bhat Vs. Dattatraya G. Hegde, reported in AIR 2008 SC 1325, in support of his various submissions. It is submitted that the view taken by the learned Magistrate is clearly an impossible view, requiring interference. 7. On the contrary, it is submitted on behalf of the first respondent that the complaint was clearly barred by time. The leaned Counsel has placed reliance on the decision of the Hon'ble Apex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice. to any other provision of this Act, be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) the cheque has been, presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from 06/02/2003, authorising the Magistrate to take cognizance of a complaint after the prescribed period of one month, if the complainant satisfies the Court that he had sufficient cause for not making the complaint within such period. Thus, by the said amendment, there was a clause in the nature of a power for condonation of delay in filing the complaint, which was introduced in the Act. The question, which precisely falls for determination in this case is what is the date of 'receipt' of the said notice in a case where the notice has been refused/not claimed by the drawer. In a case, where the drawer has actually received the notice, there is no difficulty in reckoning the date. The question as is raised in the present case arises on account of the fact that the notice is unclaimed/refused by the drawer. Admittedly, the notice was sent on 14/05/2011 and the postal endorsement shows that the respondent/accused had refused to claim the notice on 24/05/2011. The intimation of the refusal of the notice was left at the residence of the appellant on 01/06/2011. However, according to the appellant as he was out of station, he collected the envelope on 11/06/2011. It may be men ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. 12. In the case of Rahul Builders Vs. Arihant Fertilizers and Chemicals and another, reported in 2008(2) SCC 321, the cheque was for Rs. 1 Lakh which was dishonoured. The appellant sent a notice, asking to remit Rs. 8,72,409 within 10 days. The High Court held that the notice was vague and was not in conformity with the statutory requirements of proviso (b) and (c) of Section 138 of the Act. While confirming the said finding, it was held by the Hon'ble Apex Court that the service of notice is imperative in character for maintaining the complaint. Same needs to be in conformity with proviso (b) to Section 138 of the Act. It was held that Section 138 of the Act being a penal provision, needs to be construed strictly, the condition precedent wherefore is service of notice. Although the factual matrix in Rahul Builders (supra) would be distinguishable, the fact remains that the service of the notice in terms of clause (b) of the proviso to Section 138 of the Act is imperative and the provisions being penal in nature, have to be strictly construed. Moreso, when the provisions also entail a reverse burden on account of the fact that the presumption is available in favour of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very case, the complainant/payee would be entitled to claim that it is the date of intimation of the refusal, that would lead to presumption of deemed service. That has been found to be dependent on the payee acting diligently and only where within a reasonable time the notice is not returned, the complainant would be entitled to claim that the date of deemed service would be the date when the payee is so intimated. Although it is not clear, in all probability, the decision in the case of Chacko (supra) arose out of a complaint prior to the amendment by Act No. 55/2002, whereby the provisions in the nature of condonation of delay were introduced in the Act. Yet another Single Judge of the Kerala High Court in the case of Vettan Sankaran (supra), had taken a contrary view. After considering the decision of Delhi High Court in the case of Ashwani Kumar Zulka (supra), it has been held that it would be the date of refusal or the date on which the envelope is not claimed would have to be considered and not its intimation to the payee. The Delhi High Court on the facts of that case had held that although the complaint was barred by one or two days, the only result was that the action ini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post." 17. It can, thus, be seen that in the case of a service by post, the same shall be deemed to be effected by properly addressing, pre-paying and posting by registered post a letter containing the document and unless the contrary is proved, it will be deemed to have been effected at the time at which the letter would be delivered in the ordinary course of post. 18. On consideration of the relevant provisions, I find that it would be the date on which the drawer has actually refused or has unclaimed the envelope, which will have to be reckoned as the date of deemed service and not the date on which the intimation of refusal is received by the payee. As noticed earlier, even in the case of Chacko (supra), a learned Single Judge of Kerala High Court has not held as a rule that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payee to issue the notice within 15 days and, therefore, it is the date of the receipt of the intimation of dishonour, which is relevant. Obligation of the drawer is to pay within 15 days of the receipt of the notice and thus, it would logically follow that it is the date of receipt or refusal by the drawer, which would be relevant. There is one more reason why the submission on behalf of the appellant cannot be accepted. If we were to take the date of receipt of the intimation of refusal by the payee as a relevant date, it would have the effect of putting the period of limitation for filing the complaint at the mercy of the postal authorities and the time taken for service of the intimation of refusal. Such a view cannot obviously be countenanced. 21. It was argued on behalf of the appellant that if the date of actual refusal and not the date of delivery of intimation is taken, it will cause serious prejudice to the complainant and would lead to anomalous and unjust result. It was argued that without the receipt of the intimation of the refusal, the complainant would not be in a position to know as to from where the period of 15 days, which is allowed to the drawer/accused for p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rayer for condonation of delay. Even in the appeal or arguments advanced at the bar, it was not urged that the delay, if any, may be condoned. The appellant all along claimed that the complaint is filed within time. Be that as it may, in the result, the point No. 1 is answered in the negative. 23. Point No. 2 - In the face of the finding on point No. 1, the issue whether the cheque was passed in discharge of a legally enforceable debt or liability, would fall into insignificance as the finding on the point No. 2 one way or other would not change the ultimate result of dismissal of the complaint. However, this being an appeal and as the parties have addressed the Court on these aspects also, I propose to briefly deal with the same. 24. In a case, where the accused admits the signature on the cheque, a presumption arises under Section 139 of the Act in favour of the complainant. It is now well settled that while the prosecution is obliged to prove its case beyond reasonable doubt, the accused can prove his defence or rebut the presumption as is available to the complainant under Section 139 of the Act, on mere preponderance of probability. 25. The question as to quantum of evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shna Bedu Rane Vs. State of Maharashtra, (1973)1 SCC 366). 26. The presumption under Section 139 of the Act is a statutory presumption, which is evident from employment of the word 'shall'. Thus, the Court is obliged to raise such a presumption once the facts necessary for raising of such presumption are established. It is further well settled that for rebuttal of such presumption, it is not necessary as a rule that the accused shall enter into the witness box or should lead independent evidence. (See the case of Krishna Janardan Bhat (supra)). The accused can do so on the basis of cross-examination of the complainant and his witnesses and the material on record. 27. Turning to the present case, the appellant is an Advocate and a Notary. According to him, the accused had approached him for a financial accommodation in the sum of Rs. 2 Lakhs and the amount was advanced "on loan basis" (That is what is stated in the complaint). This was on 03/11/2010. Towards the repayment of the amount, the respondent passed a cheque of Rs. 2 lakhs on the same day, which was presented on 25/04/2011, when it got dishonoured. On the contrary, it is the defence of the first respondent that he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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