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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 ..... garding 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 registered as C.C. No. 219/P/04/B while the second complaint came to be registered as C.C. No. 376/OA/04/C. The said two complaints were allotted to two different J.M.F.C.s and it appears that neither the complainant nor the accused made any efforts, as required in law to ensure that both the said complaints were tried by one and the said J.M.F.C. The first complaint ended in conviction of the accused by judgment/order dated 29.3.2005. The accused has been sentenced to undergo simple imprisonment of two months and to pay a compensation of Rs. 1,00,000/- and in default of payment of compensation, the accused has been ordered to undergo six month S.I. The accused carried an appeal against the said conviction to the Court of Sessions, being Criminal Appeal No. 23/04. However, the learned Additional Sessions Judge by judgment dated 5.4.2006, was pleased to dismiss the same. Criminal Revision Application No. 15/06 arises from the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and the amendment was carried out with a view to curb the same effectively by enacting a stringent law while at the same time taking care to safeguard the interest of honest drawers. If that be the object of the amendments, the provisions of the Act are required to be interpreted in the light of the said objects intended to be achieved. The Apex Court in the case of Kusum Ingots and Alloys Ltd. v. Pennar Peterson Securities Ltd. and Ors. 2000CriLJ1464 , has set out the ingredients which are required to be proved for making out a case under Section 138 of the Negotiable Instrument Act, 1881, ("Act" for short) and they are: (i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability; (ii) that cheque has been presented to the bank within a period of six months from the da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Abrasives (P) Ltd. Hyderabad and Ors. 2004 (1) A.P 158 as well as the decision of the Apex Court in the case of V. Raja Kumari v. P. Subbarama Naidu and Anr. (2005)ILLJ990Bom . In the first case of S.S. Ummul Habiba (supra), the learned Judge of Madras High Court referred to the case of K. Bhaskaran v. Sankaran Vaighyan Balan and Anr. (supra), and observed that "Giving Notice" to the drawer in the correct address itself was held to be sufficient in the factual matrix of the case and the same could not be applied to the case at hand. It was further observed that the return of postal cover as "Intimated Unclaimed" by itself would not amount to constructive notice when it is not averred by the complainant in the complaint that the accused is evading the service and although in appropriate cases, deemed service is to be accepted by the Court, such presumption of deemed service is not a matter of co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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". Nonetheless the principle incorporated in Section 27 of the Act, profitably be imported in a case where the sender has despatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves : that it was not really served and that he was not responsible for such non-service. Any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to the strategy of subterfuge by successfully avoiding the notice. All the three courts below, by referring to the decision of the Supreme Court in K. Bhaskaran v. Sankaran Vaighyan Balan and Anr. (supra) have held that the notice in the cases at hand was duly served on the accused. There was also an averment in the complaint that the accused had intentionally disclaimed the notice. There is no dispute that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld 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". Presumption of service clearly arises in the facts of the case. Even in the absence of the house number, the accused has been served with summons from the Court. It appears that both the complainant and the accused are residents of the said ward Madel, Tivim, and being so, it would not have been difficult for the postman to locate the accused at Madel, Tivim, with a view to serve the registered postal article. In my view, the conclusions arrived at by all the three Courts below that the notice was sent at the correct address of the accused and, therefore, is presumed to have been served, could not be faulted. It is also pointed out on behalf of the complainant, that on behalf of the accused a suggestion was put suggesting that the accused was not available during day time meaning thereby he was otherwise available at the given address. In this case, the notice was sent by regi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 proving that there was no existing debt or liability was on the respondent (accused) and this they had to discharge at the trial. In the cases at hand, the complainant had averred in the complaint that the complainant had a business transaction with the accused and in partial discharge of his liability was due and liable to pay certain sums and thereafter the complainant had spelt out as regards the issue of cheques which were given by the accused in discharge of his liability. The learned acquitting J.M.F.C. observed that the complainant in his deposition had no where disclosed what was the business transaction which he had with the accused for which an amount of Rs. 70,000/- was due from the accused. The complainant although had not stated in his complaint or in his affidavit in evidence, that the complainant had advanced a sum of Rs. 1,70,000/- to the accused, the complainant had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is 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 Rs. 1.70,000/-, cannot be accepted. Next it is submitted that the complainant has not produced receipt or an agreement in support of the loan given by the complainant to the accused. Here again, it must be observed that if the complainant and the accused, were friends, normally a friend would not insist that the accused, as a friend, issues a receipt for the payment of the loan amount and would have been satisfied by accepting of the cheques by the accused in payment of the said loan. On behalf of the complainant, it is submitted that if the cheques were given as a matter of security, then the accused also ought to have entered into a written agreement, at the time of giving of cheques. The learned J.M.F.C. has also held against the complainant the fact that the complainant had not shown the amount advanced by him in his income tax returns. I do not think that every person who gives friendly loans does in all cases show such loans in their income tax returns more so if they are payable on demand after short time. The l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut 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 the accused and to which the complainant was one of the guarantors. It is not the case of the accused that he 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 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed 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 accused by the convicting J.M.F.C. and as upheld by the learned Additional Sessions Judge in Criminal Appeal No. 23/04, could not be faulted. Both the said Courts have exhaustively dealt with the case of the complainant viz-a-viz the defence taken by the accused and has come to the conclusion that the case of the complainant was proved beyond reasonable doubt against the accused. As a result, there is no merit in the Criminal Revision Application No. 15/06 and, therefore, the same is hereby dismissed. 8. As regards Criminal Appeal No. 60/05, for the very reasons discussed herein above, the acquittal of the accused under Section 138 of the Act, cannot be sustained. The Judgment and Order dated 06.04.2005 of the learned J.M.F.C. in C.C. No. 376/OA/2004/C therefore, deserves to be set aside and consequently the accused is hereby convicted under Section 138 of the Act for failing to pay the amount due to the compl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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