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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 ..... r he disowned his signature thereon. During his examination under Section 313 Cr.P.C. also he did not project any defence case. He simply stated that the evidence of PW-1 and 2 were false. The statutory presumption under Section 139 read with the Rule of Evidence as provided under Section 118 NI Act with regard to the existence of debt or liability is not a discretionary presumption, it is a statutory presumption which is obligatory on the part of the court. A huge burden is cast on the accused to rebut such presumption by adducing reasonably probable defence. It cannot be rebutted by merely offering an explanation - In the instant case, apparently the accused petitioner did not lead any evidence in rebuttal of such statutory presumptions. He has also failed to bring on record such facts and circumstances which would make the courts believe that the liability, attributed to the accused petitioner was improbable or doubtful. This court is of the view that there is no reason to interfere with the concurrent findings of the courts below with regard to conviction of the petitioner under Section 138 NI Act. As a result, his conviction under Section 138 NI Act is upheld. Petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the complainant under Section 200 Cr.P.C, summoned the accused. Trial commenced with the examination of the accused under Section 251 Cr.P.C. The following substance of accusation was explained to the accused petitioner in terms of Section 251 Cr.P.C: That you on 13.11.2010 took ₹ 4,50,000/- from the complainant, Ram Sujit Gowala and on that day itself you gave a cheque of ₹ 4,50,000/- to the complainant to clear the payment and that cheque was deposited by the complainant in his bank account in the SBI, Manik Bhandar Br. But the cheque was returned back with endorsement that there was insufficient fund in your account and a statutory notice was served on you by the complainant to make the payment but you did not clear the payment in due time and that you thereby committed an offence punishable U/S 138 NI Act Accused pleaded not guilty and desired to stand trial. 4. In the course of trial, learned Chief Judicial Magistrate framed the following point for determination: Point for determination Whether on 13-11-2010 accused Sri. Banwari Sinha drew a cheque bearing no. CAB00/134-838693 for a sum of ₹ 4,50,000/- (rupees four lacs fifty thousa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court, accused petitioner presented an appeal in the court of the Sessions Judge of Unakoti Judicial District at Kailashahar. The learned Sessions Judge by the impugned judgment affirmed the conviction and sentence of the petitioner under Section 138 NI Act viewing as under: 7. These two witnesses have clearly and convincingly proved the episode of the payment of loan, handing over the cheque and also the episode of dishonoring the cheque by the bank on the ground of insufficient balance in the savings account of the appellant. The evidence on record vividly proves the commission of offence by the appellant. While arguing the case, learned counsel of the appellant Mr. R.R. Kar drew attention of the court that the notice was not served properly to the appellant, because the appellant himself did not receive the notice. On perusal of the judgment of the learned trial court it is found that learned trial court had discussed regarding the receipt of the notice and found no illegality in service of notice to the appellant. It is fact that the appellant did not receive the notice, but from the report of Postal Department it is fond that the appellant was out of station for a long t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... six months from the date on which it is drawn, the drawee bank returned the cheque unpaid due to insufficiency of funds, the respondent no. 1 served 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 the appellant also failed to pay the cheque amount to the respondent no. 1 within 15 days of the receipt of the said notice. Thus, the prosecution has successfully proved all the requirements by the evidence of the PW 1 and the respondent no. 1 in this appeal and duly corroborated by PW 2. 10. In view of the above discussion it is clearly proved that the appellant Sri Banwari Sinha has committed an offence punishable U/s 138 of the NI Act and accordingly learned trial court has rightly come to the findings in regard to convicting the appellant and sentencing him therefore U/s 138 of the NI Act and therefore, it is held that the conviction and sentence as awarded by the learned trial court against the appellant is upheld and deserves no interference. 8. Heard Mr. H.K. Bhowmik, learned counsel appearing for the petitioner. Heard Mr. P. Roy Barman, learned Sr. Advocate appearin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the recovery of incriminating articles, cash and jewellery belonging to the deceased, the finger prints of the accused and the false stories given by the accused to different persons who came to the bungalow of the deceased during 17th/18th March, 2003, to ensure that none of them enter the house of the deceased stand unequivocally established. Besides all this circumstantial evidence, another very significant aspect of the case is that none of the accused, particularly accused No. 2, offered any explanation during the recording of their statements under Section 313 CrPC. It is not even disputed before us that the material incriminating evidence was put to accused No. 2 while his statement under Section 313 CrPC was recorded. Except for a vague denial, he stated nothing more. In fact, even in response to a question relating to the injuries that he had suffered, he opted to make a denial, which fact had duly been established by the statements of the investigating officers, doctors and even the witnesses who had seen him immediately after the crime. It is a settled law that the statement of Section 313 CrPC is to serve a dual purpose, firstly, to afford to the accused an opportunity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under Section 313 of the Code is to put all incriminating evidence against the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. At the same time, also to permit him to put forward his own version or reasons, if he so chooses, in relation to his involvement or otherwise in the crime. The court has been empowered to examine the accused but only after the prosecution evidence has been concluded. It is a mandatory obligation upon the court and besides ensuring the compliance therewith the court has to keep in mind that the accused gets a fair chance to explain his conduct. The option lies with the accused to maintain silence coupled with simpliciter denial or in the alternative to explain his version and reasons for his alleged involvement in the commission of crime. This is the statement which the accused makes without fear or right of the other party to cross-examine him. However, if the statements made are false, the court is entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. The primary purpose is to establish a direct dia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the accused by issuing statutory demand notice within stipulated time. But the accused intentionally avoided the service of the notice and repayment of the loan. Counsel submits that all these circumstances were brought to the notice of the accused during his examination under Section 313 Cr.P.C. Therefore, the accused petitioner cannot take a plea that he was denied opportunity to make out a defence case since the incriminating evidence was not properly explained to him during his examination under Section 313 Cr.P.C. Counsel submits that where there is a concurrent findings of the courts below, this court cannot re-appreciate the evidence and come to its own conclusion in exercise of revisional power. In support of his contention Mr. Roy Barman has relied on the decision of the Apex Court in State of Kerala vs. Putthumana Illath Jathavedan Namboodiri reported in (1999) 2 SCC 452 wherein the Apex Court in paragraph 5 of the judgment has held as under: 5. Having examined the impugned Judgment of the High Court and bearing in mind the contentions raised by the learned counsel for the parties, we have no hesitation to come to the conclusion that in the case in hand, the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agent of the person to whom it is required to be given, or, where he has died, to his legal representative, or, where he has been declared an insolvent, to his assignee; may be oral or written; may, if written, be sent by post; and may be in any form; but it must inform the party to whom it is given, either in express terms or by reasonable intendment that the instrument has been dishonoured, and in what way, and that he will be held liable thereon; and it must be given within a reasonable time after dishonor, at the place of business or (in case such party has no place of business) at the residence of the party for whom it is intended. If the notice is duly directed an sent by post and miscarries, such miscarriage does not render the notice invalid The above provision makes it clear that the notice, if duly directed, shall serve the purpose of law. We may gainfully refer here the observation of the Apex Court in the case of K. Bhaskaran v. Vaidhyan Balan and Anr. AIR 1999 SC 3762: (1999)7 SCC 510 which reads thus: 18. On the part of the payee he has to make a demand by giving a notice in writing. If that was the only requirement to complete the offence on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice. Once it is despatched his part is over and the next depends on what the sendee does. 22. 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 v. Smt. Shivrani and Ors., (1981) 2 SCC 535, and Jagdish Singh v. Natthu Singh, (1992) 1 SCC 647 : AIR (1992) SCW 1747 : AIR 1992 SC 1604 23. Here the notice is returned as unclaimed and not as refused. Will there be any significant different 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 will be useful. The Section reads thus: 27. Meaning of service by post. - Where any Central Act or Regulations 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt is over and the next depends on what sendee does. In the case of Indo Automobiles v. Jai Durga Enterprises And Ors.; AIR 2009 SC 386 the Apex Court has reiterated the same view and held thus: Admittedly, notice under section 138B of the Negotiable Instruments Act was sent to the respondents through registered post and under a certificate of posting on their correct address of the respondents. The High Court had quashed proceeding on the ground that although notice through registered post and also under certificate of posting were sent by the appellant/complainant to the respondents but because of the endorsement of the postal peon, the service could not be said to have been effected. In our view, the High Court was not justified in holding that service of notice could not be found to be valid. 13. Counsel submits that case against the accused stands proved and therefore, the impugned judgment does not call for any interference in appeal. 14. The complainant has produced the impugned cheque bearing No. CAB00/134 838693 dated 13.11.2010 of the sum of ₹ 4,50,000/- which has been taken into evidence and marked as exhibit -1 during the trial. During the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d had issued the impugned cheque to the complainant and requested him to present the cheque at the bank at the end of the month. During cross examination of PW-1 and 2, accused did not deny the cheque nor he disowned his signature thereon. During his examination under Section 313 Cr.P.C. also he did not project any defence case. He simply stated that the evidence of PW-1 and 2 were false. 17. The statutory presumption under Section 139 read with the Rule of Evidence as provided under Section 118 NI Act with regard to the existence of debt or liability is not a discretionary presumption, it is a statutory presumption which is obligatory on the part of the court. A huge burden is cast on the accused to rebut such presumption by adducing reasonably probable defence. It cannot be rebutted by merely offering an explanation. In the case of Hiten P. Dalal vs. Bratindranath Bannerjee reported in (2001) 6 SCC 16 the Apex Court held as under: 21. The appellant's submission that the cheques were not drawn for the 'discharge in whole or in part of any debt or other liability' is answered by the third presumption available to the Bank under Section 139 of the Negotiable Inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsider its existence to be reasonably probable, the standard of reasonability being that of the 'prudent man'. 18. Similarly, in the case of Mallavarapu Kasivisweswara Rao vs. Thavikonda Ramulu Firm and Ors. reported in (2008) 7 SCC 655 the Hon'ble Supreme Court has held that it is a settled proposition that initial burden lies on the defendant to prove the non existence of consideration. The relevant passage of the judgment may be gainfully reproduced which is as under: 17. Under Section 118(a) of the Negotiable Instruments Act, the court is obliged to presume, until the contrary is proved, that the promissory note was made for consideration. It is also a settled position that the initial burden in this regard lies on the defendant to prove the non-existence of consideration by bringing on record such facts and circumstances which would lead the Court to believe the nonexistence of the consideration either by direct evidence or by preponderance of probabilities showing that the existence of consideration was improbable, doubtful or illegal..... 19. In the instant case, apparently the accused petitioner did not lead any evidence in rebuttal of such statut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rve the purpose unless it is proved by leading evidence that the complainant knew that the accused lived elsewhere and the address was incorrect or that it was within the knowledge of the complainant that he lived elsewhere when the notice was dispatched to the said address. From the given facts and circumstances of the case it can be safely presumed that the accused avoided the service of notice with a view to get rid of the liability. In view of the decision of this court in Keshab Banik vs Shekhar Banik (supra) the plea of the accused that the statutory notice was not served on him is unacceptable. 23. As discussed, learned counsel of the petitioner has referred to the decision of the Hon'ble Apex Court in the case of Parminder Kaur(supra) and the decision in the case of Munna Kumar Upadhyaya alias Munna Upadhyaya (supra). The facts and circumstances of the present case being completely distinguishable the accused cannot derive any benefit from these judgments. 24. In view of what is discussed above, this court is of the view that there is no reason to interfere with the concurrent findings of the courts below with regard to conviction of the petitioner under Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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