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TMI Blog2021 (12) TMI 278X X X X Extracts X X X X X X X X Extracts X X X X ..... d and they developed a good relationship. On 31.10.2010 accused met the complainant in his house and requested him to give a loan of Rs. 4,50,000/- to him to meet some urgent requirements. Accused assured the complainant that he would pay back the money within next 45 days. On good faith complainant gave a loan of the amount of Rs. 4,50,000/- to the accused and the accused in turn issued a cheque bearing Nos. CAB00/134-838693 dated 13.11.2010 for an amount of Rs. 4,50,000/- drawn on the SBI in favour of the complainant and instructed the complainant to present the cheque at the bank for encashment only after 45 days. Accordingly, the complainant presented the cheque to the SBI at the Kailashahar branch on 29.12.2010 for encashment. But the cheque was returned with the endorsement that the accused had insufficient fund in his account. On 22.01.2011 i.e. within 30 days of the dishonor of the said cheque, complainant issued a notice through his counsel to the petitioner. The notice was returned unserved with the endorsement of the postal authorities that accused was "out of station for long time". Thereafter, the complaint was filed since the accused petitioner did not pay back the lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he evidence, the learned trial court, after hearing the parties at length and considering the submissions made by their counsel, held the accused guilty of offence punishable under Section 138 NI Act and sentenced him to SI for 6 months with a fine of Rs. 4,50,000/- with default stipulation and directed that fine if realized, be paid to the complainant namely Ramsujit Goala. Relevant extract of the judgment of the trial court is as under: "41. In the result, the convict namely Sri Banawari Sinha is hereby sentenced to suffer Simple Imprisonment (SI) for six (6) months and is also sentenced to pay fine of Rs. 4,50,000/- (Rupees four lacs fifty thousand) only for the commission of offence punishable u/s. 138 of the NI Act, in default to pay the amount of fine to suffer Simple imprisonment for 6 (six) months. 42. The surety of the accused-convict stands discharged from the liability of the bail bond. 43. In the event of realization of the fine money amounting to Rs. 4,50,000/- (Rupees four lacs fifty thousand), the same shall be paid to the complainant of this case namely Sri Ram Sujit Goala as compensation in terms of Section 357 of CrPC." 7. Aggrieved by and dissatisfied with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. On perusal of the reply of the appellant in his examination U/s 313 of Cr.P.C. it is also found that the appellant admitted the same address to which the notice was served and as such, the explanation offered by the learned trial court regarding receipt of the notice by the appellant is justified. 8. To prove a case U/s 138 of the NI Act following requirements are to be fulfilled:- I) Drawing of the cheque, II) Presentation of the cheque 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, III) Returning of the cheque unpaid by the drawee bank due to insufficiency of funds or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank, IV) Giving notice in writing to the drawer of the cheque within 30 days of the receipt of information about the dishonor demanding payment of the cheque amount, and V) Failure of the drawer to pay the cheque amount to the payee within 15 days of the receipt of the said notice. 9. In the case at hand all these above referred requirements have been fulfilled. The appellant drew a cheque, the respondent no. 1 pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s under: "22. Under the Code of Criminal Procedure, 1973 after the prosecution closes its evidence and examines all its witnesses, the accused is given an opportunity of explanation through Section 313(1)(b). Any alternate version of events or interpretation proffered by the accused must be carefully analysed and considered by the trial Court in compliance with the mandate of Section 313(4). Such opportunity is a valuable right of the accused to seek justice and defend oneself. Failure of the trial Court to fairly apply its mind and consider the defence, could endanger the conviction itself. Unlike the prosecution which needs to prove its case beyond reasonable doubt, the accused merely needs to create reasonable doubt or prove their alternate version by mere preponderance of probabilities. Thus, once a plausible version has been put forth in defence at the Section 313 CrPC examination stage, then it is for the prosecution to negate such defense plea. " 10. Counsel has also relied on the decision of the Apex Court in Munna Kumar Upaddhaya @Munna Upadhyaya vs. State of Andhra Pradesh reported in AIR 2012 SC 2470 wherein the Apex Court vide paragraph 49 of the Judgment has held as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere no specific question has been put by the trial court on an inculpatory material in the prosecution evidence, it would vitiate the trial. Of course, all these are subject to rider whether they have caused miscarriage of justice or prejudice. This Court also expressed a similar view in S. Harnam Singh v. State (Delhi Admn.) while dealing with Section 342 of the Criminal Procedure Code, 1898 (corresponding to Section 313 of the Code). Non-indication of inculpatory material in its relevant facts by the trial court to the accused adds to the vulnerability of the prosecution case. Recording of a statement of the accused under Section 313 is not a purposeless exercise." Again, in its recent judgment in Manu Sao v. State of Bihar [ (2010) 12 SCC 310], a Bench of this Court to which one of us, Swatanter Kumar, J., was a member, has reiterated the above-stated view as under: "12. Let us examine the essential features of this Section 313 CrPC and the principles of law as enunciated by judgments, which are the guiding factors for proper application and consequences which shall flow from the provisions of Section 313 of the Code. 13. As already noticed, the object of recording the state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this section should not be considered in isolation but in conjunction with evidence adduced by the prosecution." Mr. Bhowmik, learned counsel of the petitioner further contends that the service of notice is a sign qua non for prosecution under Section 138 NI Act. The record would reveal that no statutory notice was served on the accused petitioner. Counsel therefore, urges the court to set aside the impugned judgment and order of conviction and sentence of the petitioner. 11. Mr. P. Roy Barman, learned Sr. Advocate appearing for the complainant submits that complainant being a pensioner on good faith gave loan of a huge sum of Rs. 4,50,000/- to the accused since the accused who was a bank employee assured the complainant that he would pay back the money within 45 days. According to Mr. Roy Barman, learned Sr. Advocate, it has been proved that accused issued the impugned cheque of Rs. 4,50,000/- which was later dishonoured by his banker for insufficient fund in his bank account. The fact was brought to the notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence. The High Court also committed further error in not examining several items of evidence relied upon by the Additional Sessions Judge, while confirming the conviction of the respondent. In this view of the matter the impugned Judgment of the High Court is wholly unsustainable in law and we, accordingly set aside the same. The conviction and sentence of the respondent as passed by the Magistrate and affirmed by the Additional Sessions Judge in appeal is confirmed. This appeal is allowed. Bail bonds furnished stand cancelled. The respondent must surrender to serve the sentence." 12. With regard to the service of statutory demand notice, counsel has relied on the decision dated 17.11.2020 of this court in Crl.Rev.P. No. 79 of 2017 whereby it was held by this court that notice, duly directed, shall serve the purpose of law. In the said judgment, earlier decision of this Court in Keshab Banik Vs. Shekhar Banik reported in 2013 1 TLR 528 was relied upon wherein this court decided as under: "9. Section 94 of the NI Act prescribes the very mode of giving notice which reads, thus: 94. Mode in which notice may be given- Notice of dishonor may be given to a duly authorized agent of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue drawer would get the premium to avoid receiving the notice by different strategies and he could escape-from the legal consequences of Section 138 of the Act. It must be borne in mind that Court should not adopt an interpretation which helps a dishonest evader and clips an honest payee as that would defeat the very legislative measure. 21. In Maxwell's "Interpretation of Statues" the learned author has emphasized that "provisions relating to giving of notice often receive liberal interpretation." (vide page 99 of the 12th edn.) The context envisaged in Section 138 of the Act invites a liberal interpretation for the person who has the statutory obligation to give notice because he is presumed to be the loser in the transaction and it is for his interest the very provision is made by the Legislature. The words in clause (b) of the proviso to section 138 of the Act show that 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 despatched hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... premium to avoid receiving the notice by different strategies, and he could escape from the legal consequences of Section 138 of the Act. It must be borne in mind that the court should not adopt an interpretation which helps a dishonest evader, and clips on honest payee as that would defeat the very legislative measure. The payee has statutory obligation to give notice because he is presumed to be the loser in the transaction. Payee has to make demand by "giving a notice" in writing. If that was the only requirement to complete the offence on the failure of the drawer to pay cheque amount within 15 days from the date of such "giving", the travails of the prosecution would have been very much lessened. But the Legislature say that failure on the part of the drawer to pay amount should have been within 15 days "of the receipt" of the said notice. It is, therefore, clear that giving notice in the context is not the same as receipt of notice. Giving is a process of which receipt is the accomplishment. It is for the payee to perform the former process by sending the notice to the drawer at correct address. Once it is despatched his part is over and the next depends on what sendee does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt maintained by the accused with his banker for payment of any amount to another person from his account in discharge in the whole or part of the debt or liability and (iii) The cheque is returned by the banker in all 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 banker. 16. In the present case, the complainant has presented a probable story supported by evidence. It stands established that he developed a relationship with the accused who was a cashier at the Kailashahar branch of SBI where the complainant used to come for drawing his pension. It is not denied that as an employee of the bank the accused maintained a bank account in the said branch of the bank. The fact that the accused visited the house of the complainant and requested him to give loan of Rs. 4,50,000/- also stands established. PW-2 has supported the evidence of complainant PW-1 that in his presence the complainant gave the loan in cash to the accused and in turn the accused had issued the impugned cheque to the complainant and requested him to present the ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the nonexistence of the presumed fact. 23. In other words, provided the facts required 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 'prude ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt 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..." 21. With regard to the plea of the accused regarding non service of the statutory notice, the trial court as well as the appellant court has rightly held that notice dated 22.01.2011 [Exhibit-3] was dispatched to the known address of the accused by the registered post and the same was returned unserved with a postal endorsement to the effect that the addressee was out of station for long time. 22. It is a settled proposition of law that if the notice is properly addressed and dispatched to the address that will serve the purpose unless it is proved by leading evidence that the complainant knew that the accused lived elsewhere and the add ..... X X X X Extracts X X X X X X X X Extracts X X X X
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