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TMI Blog2006 (7) TMI 733X X X X Extracts X X X X X X X X Extracts X X X X ..... had enough money with him to repay the said loan, if at all the complainant had approached him, after receipt of the said notice. The accused in fact has not spelt out in his said 313 statement as to how the three cheques given by him as security to the complainant were to be used. It has been submitted on behalf of the accused that the said three cheques were given to the complainant so that in case the Bank filed a suit against the complainant and the complainant was compelled to make the payment towards the said sum due to the said Punjab National Bank, the said cheques would give security to the complainant. I am still at pains not to understand as to how the said arrangement, was to work. The learned Additional Sessions Judge has noted that the balance amount in the account of the accused was 238.34. If the balance amount of the accused in the account never exceeded a sum of ₹ 245/-, one fails to understand as to what sort of security the accused had given to the complainant by way of the said cheques. The learned acquitting J.M.F.C. has proceeded to examine the case of the complainant as if the complainant had no presumptions in his favour. She might have been right in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tto, J. For the Appellant: P.P. Singh, Adv. For the Respondent: S.A. Samant, Adv. for respondent No. 1 JUDGMENT N.A. Britto, J. 1. The subject matter of the dispute between the complainant and the accused are three cheques which have been dishonoured, the details of which are as follows: 1. Cheque No. 4605574 dated 28.11.2003 for ₹ 50.000/-. 2. Cheque No. 4605575 dated 28.11.2003 for ₹ 50.000/-. 3. Cheque No. 4605576 dated 1.12.2003 for ₹ 70.000/-. 2. Broadly stated, the case of the complainant is that the said three cheques were given by the accused to the complainant by way of payment of ₹ 1,70,000/- advanced by the complainant to the accused in the first week of November, 2003. Likewise, it was the case of the accused that the said three cheques were given to the complainant by way of security. As regards the first two cheques, the complainant sent a notice to the accused dated 1.12.2003 and regarding the third cheque, the complainant sent the notice dated 9.1.2004. Both the notices were sent by registered A.D. and upon non-compliance of the said notices, the accused filed two complaints. The first complaint in respect of the two cheques came to be regist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he purpose of phoning but whenever the accused purchased the household goods from his Grocery shop, the accused always cleared the bills in cash and that his relations with the accused were very cordial and both used to visit each other's houses at least once a week. The aforesaid facts have been denied on behalf of the accused in the cross-examination. However, if the complainant and the accused could stand sureties for one another, there is no reason why the said facts stated by the complainant could not be accepted and once accepted, the said facts would show that the complainant and the accused were close family friends. 4. It is now common knowledge that the Negotiable Instruments Act, 1881, was amended with a view to enhance the acceptability of cheques in settlement of liabilities by making the drawer liable for penalties in case of bouncing of cheques due to insufficiency of funds in the accounts or for the reason that it exceeds the arrangements made by the drawer, with adequate safeguards to prevent harassment of honest drawers, as the evil practice of issuing cheques in settlement of liabilities without there being adequate amount in the accounts had become rampant a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used was served with summons on the said address and being so, considering the presumption under Section 27 of the General Clauses Act and also considering the decision in the case of K. Bhaskaran v. Sankaran Vaighyan Balan and Anr. 1999CriLJ4606 , that when a sender has dispatched a notice by post with correct address written thereon, such a notice can be deemed to have been served on the sendee unless he proves that it was not actually served and that he was not responsible for non service. On behalf of the accused, it is contended that the said notice was not sent at the correct address of the accused and, therefore, could not have been deemed to have been served. In this context, it is pointed out that the house number given in the notice of the Punjab National Bank, dated 8.10.2003, is House No. 1483/1 while the registered notice sent to the accused dated 9.01.2004, had House No. 459/1/D. It is also pointed out that in the cause title of the complaint, no house number has been given. On behalf of the accused, reliance has been placed on the case of S. Ummul Habiba, Proprietor Alim Auto Supplies v. B. Rajendran 2004 (2) D.C.R. 449 and Shashi Finance Corporation v. Super Shine A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be 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 an accomplishment. It is for the payee to perform the former process by sending the notice to the drawer at the correct address. The Court then referred to the Black Law's Dictionary and observed that if a strict interpretation is given that the drawer should have actually received the notice for the period of 15 days to start running no matter that the payee sent the notice on the correct address, a trickster cheque 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 the Court should not adopt an interpretation which helps a dishonest evader and clips an honest payee as that would defeat the very legislative measure. Referring to a notice which is un-claimed, the Supreme Court proceeded to. refer to Section 27 of the General Clauses Act, 1897, and observed further that no doubt; Section 138 of the Act does not require that the notice should be given only by post . N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Sessions Judge also considered the contention of the accused and has rejected the same and, in my view rightly, contention of the accused being that the complainant had deliberately put residential address on the legal notice fully knowing that he would not be available in the house during that time. Before this Court, my attention was also drawn to a statement in the cross examination of the complainant wherein the complainant had stated that the accused had gone to Kolhapur to sell his residential property to repay his money but that solitary statement cannot be connected certainly to the time when the complainant had sent the said notice to the accused. As already observed, all the said three notices, two of which mentioned house number differently, show that the accused was a resident of ward Madel, of Village Tivim, in Bardez Taluka. In the absence of a house number, it would not have been difficult to the postman to reach to the house of the accused and make an attempt to deliver the registered postal articles sent by the complainant to the accused, in a small ward of Tivim Village. In this case, the postal articles were returned with endorsements intimated and unclaimed . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contrary, it is the plea of the accused that the said cheques were given by way of security, had to be accepted. In this context, on behalf of the accused, reliance has been placed on the case of A. Bhoosanrao v. Purushothamdas Pantani and Anr. (Judgment on Dishonour of cheques, page 59), wherein it was observed that the initial burden was on the complainant to prove that the cheque was given by the accused in discharge of a legally enforceable debt. To the same effect is the Judgment of this Court in the case of Goa Handicrafts Rural and Small Scale Industries Development Corporation Ltd. v. Samudra Rops Pvt. Ltd. and Ors. 2006 (1) Bom. C.R. 157 : 2006 (2) Crimes 409, wherein this Court observed that the initial burden was on the complainant and that was merely to show that the cheque had been drawn by the drawer in favour of the complainant and then it would be the duty of the accused to rebut the presumption. The Apex Court in the case of M.M.T.C. Ltd. and Anr. v. Medchl Chemicals and Pharma (P) Ltd. and Anr. 2002CriLJ266 , had observed that there is no requirement that the complainant must specifically allege in the complaint that there was a subsisting liability. The burden of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused from his personal savings. On behalf of the accused, it is submitted that if the complainant had borrowed money from his brother, the complainant would not have given the money from his savings. If the complainant's statement is read as a whole, it only means that he had lent some money to his brother, for which he had to wait to be handed over to the accused but the entire amount was from his personal savings. It is also pointed out that the complainant was a person who had a liability towards Pirna Co-operative Credit Society and, therefore, it could not be expected that the complainant would give loan to the accused. Here it is to be noted that the complainant and the accused were very good friends and an obligation towards a friend would certainly come before the obligation towards the said Pirna Co-operative Credit Society. After all, the complainant was a commerce graduate having his own Grocery business and a STD pay phone and, therefore, the contention that the complainant was a man of no means and therefore could not arrange the said sum of ₹ 1.70,000/-, cannot be accepted. Next it is submitted that the complainant has not produced receipt or an agreemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e accused that he had given them by way of security had to fail. In this context, the accused in C.C. No. 376/OA/04/C stated thus: I had taken house loan from Punjab National Bank, Mapusa Bank and complainant in the present case Nilesh Salgaonkar, is the guarantor for the said house loan. I am a defaulter in paying the said house loan to the Punjab National Bank, being a defaulter in clearing the housing loan, Manager, Punjab National Bank, issued notice to me and to guarantor Nilesh Salgaonkar. Since the house loan was to the tune of ₹ 5 lakhs, complainant Nilesh Salgaonkar told me as a security that I should give him some cheques as a future security so that in the long run, if I fail to pay the said loan amount at least the said security given by me would be helpful to him in the long run. Accordingly, I gave three cheques in the name of Nilesh Salgaonkar and I had signed the said cheques without mentioning the amount to be paid to Nilesh Salgaonkar. All the three cheques were undated. 7. Admittedly, the complainant and the accused had received a notice dated 8.10.2003, from the said Punjab National Bank, calling upon them to clear the amount due on the loan borrowed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ards the discharge of liability. In fact there are mandatory presumptions as the very words of the section show but, at the same time, they are rebuttable presumptions. The view held by the Supreme Court in the case of Hiten P. Dalai v. Bratindranath Banerjee (supra), has been followed in the case of K.N. Beena v. Muniyappan and Anr. 2001CriLJ4745 . As stated by this Court in the case of Santan Financiers and Real Estate Pvt. Ltd. v. Devapa A. Sarvi and Anr. 2005 (2) Bom. C.R. 143 : 2005 (1) Goa 390, a presumption available under Section 139 of the Act in favour of the complainant is a rebuttable presumption but the same cannot be rebutted only by suggestions or statements given by the accused under Section 313 of the Cr.P.C. In the case at hand, the accused chose not to step in the witness box to try to rebut the said presumption. The said presumption also could not have been said to be rebutted by the accused in the cross-examination to which reference has already been made. In my view, considering the facts of the cases, the learned acquitting J.M.F.C. was certainly not justified in acquitting the accused under Section 138 of the Act. On the other hand, the conviction of the acc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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