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TMI Blog2003 (3) TMI 768X X X X Extracts X X X X X X X X Extracts X X X X ..... lainant. The said cheques when presented for encashment were dishonoured by the bank on the ground of insufficiency of funds. The information of dishonour was received by the complainant on the respective dates of dishonour. The complainant allegedly informed the accused of the fact of dishonour. Both of them are Professors in a college. The complainant caused registered notices of demand as insisted by law to be issued to the accused. The notices addressed to the residential address of the accused were not received and were returned to the accused. Even before the complainant actually received those notices back, by way of abundant caution, the complainant caused further notices to be issued to the accused at his official address. These were also evaded. All such attempts to effect service did not fructify. No payment was made by the accused. It is in these circumstances that the complainant came to court with three separate complaints. 3. Cognisance was taken by the learned Magistrate. The accused denied the offence alleged against him. Thereupon the complainant examined Pws. 1 to 4. PW. 1 is the complainant. PW. 2 is the manager of the drawee bank. PW. 3 is the Principal of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anced detailed arguments. While the learned counsel for the appellant-complainant supports the other findings in the impugned common judgment and assails the finding that the cheques have not been proved to be ones issued for the discharge of any legally enforceable debt/liability, the learned counsel for the respondent-accused supports the finding on that aspect but assails the finding that the statutory time table has been followed satisfactorily by the complainant. 8. The first question to be considered is whether the finding that the cheques have not been proved to be issued for the discharge of a legally enforceable debt/liability is correct or not. Exts.P1, P9 and P15 are the cheques in question. They are admittedly signed by the accused. Those cheques are admittedly written on cheque leaves issued to the accused by his bank to operate his account. We have the oral evidence of PW.1/complainant about the circumstances under which the cheques found their way into his possession from the possession of the accused. The presumption under Section 139 of the Negotiable Instruments Act does also stare at the accused. It is by now trite that the burden is on the accused to rebut th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of possibilities and probabilities as in a civil case. This does not of course mean that any and every fanciful defence, suggestion or theory will be purchased by a court. Certainly the accused, to succeed in his defence, must discharge the burden under Section 139 at least by the standards applicable in a civil proceedings. 12. I must immediately note that whether the proceedings be civil or criminal, the definition of the expression proved in Section 3 must apply with equal force. Whether the proceedings be civil or criminal, the standard to be adopted is that of a reasonably prudent person and the question will be decided on the basis of possibilities and probabilities. A higher degree of probability is insisted in a criminal prosecution from the prosecutor. This does not mean that a criminal court need not assess possibilities and probabilities while considering the case of the complainant. It is true that a higher degree of probability must be insisted by the courts while considering the case of a complainant/prosecutor in a criminal prosecution. What is the theoretical basis for this insistence? If the definition of the expression proved is common to both civil and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid plea must be accepted. 13. The prosecution case must rest on its merit. The improbability of the defence is no reason to accept the case of the prosecution. As a general principle this can of course be accepted. But when a court tries to appreciate evidence and has to choose between two versions, the totally unacceptable stand taken by the accused, more often that not, turns out to be a very vital and crucial input to decide whether the contra version of the prosecution can be accepted or not. This does not mean that when the prosecution case does not reveal an offence a conviction can be entered on the basis of the unacceptable defence set up by the accused. All that I intend to note is that the court has to be reasonable. The standards of an ordinarily prudent person must be zealously adhered to even in a criminal trial. Otherwise the language and decisions of the courts would become alien and incapable of acceptance and digestion of even the reasonable men in the polity. That cannot be permitted to happen. 14. What is the defence raised by the accused in this case? How has he discharged the burden under Section 139 of the Negotiable Instruments Act? He wants the court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay that when the hand writing in the cheque either entirely or in part is not that of the accused, the presumption under Section 139 would stand discharged and the cheque can then be reckoned as one which is materially altered. The presumption under Section 139 of the Negotiable Instruments Act is definitely not limited to cheques written in the hand of the drawer only. A cheque issued by the accused filled up by some other is not by itself a cheque materially altered. The decision in 2003 (1) KLT 604 does not and cannot yield to such a conclusion. Depending of course upon circumstances, the presumption appears to be easy generally that the accused who handed over a blank cheque leaf duly signed to another, authorised such person to make the relevant entries. Admission of the signature by a literate person goes a long way in the proof of the document. A person is certainly bound to explain the circumstances under which he had affixed his signature in the document and especially so in a document like a negotiable instrument/cheque, that too by such an educated and knowledgeable person like the accused. 17. I must also note that the defence urged by the accused is one which cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces succeeds. Appellate interference is called for. 20. The learned counsel for the respondent-accused then contends that the statutory time table has not been followed by the complainant. Separate consideration of the facts in each appeal becomes necessary on this aspect. 21. So far as Crl. A. 430 of 1995 is concerned which arises from S.T. 146 of 1991, no serious objection is raised in this aspect. The cheque is dated 1.6.1990. The cheque was presented and dishonoured on 22.10.1990. The complainant admittedly had information of such dishonour oh 22.10.1990 itself. Though in his evidence the complainant contended that after receipt of the intimation of dishonour he informed the accused of such dishonour in all the 3 cases, that cannot be construed as a notice in writing demanding payment contemplated under Section 138 of the Negotiable Instruments Act. No one has a case that a demand in writing to pay the cheque amount was made by the complainant or received by the accused. But that alleged conduct clearly shows that the complainant had knowledge of the dishonour of the cheques on the date of such dishonour itself. This is the case in respect of all the three cheques. The c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese circumstances not necessary to consider the validity of the notices sent on 21.11.1990 and 2.12.1990. They are legally invalid as a period far exceeding 15 days had elapsed from the date of knowledge of the dishonour (31.10.1990) when they were issued. 24. Thus the only question to be considered is whether the lawyer notice dt. 7.11.1990 demanding payment under the cheques concerned in Crl. A. Nos. 431 and 435 of 1995 is valid or not. The complaint in both these cases were filed on 1.1.1991. I have already found that this notice sent on 7.11.1990 does comply with the mandate of Section 138 of the Negotiable Instruments Act that such notice of demand must be issued within 15 days of the date of knowledge of dishonour. That requirement is satisfied. The complaints in these cases were filed on 1.1.1991. Under Section 138 of the Negotiable Instruments Act the complaint must be filed within 30 days of the date on which the cause of action arises. The cause of action in a proceeding under Section 138 of the Negotiable Instruments Act would arise if within 15 days of the date of receipt of the notice of demand the amount due under the cheque is not paid by the drawer to the payee. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the notice sent by him. If within a reasonable time the notice is not returned, the complainant is certainly expected to make enquiries. If he does not draw the presumption of due service at the appropriate time by being indifferent to his own rights, such a complainant may not be justified in insisting that the presumption of due service can be drawn only if and when he gets the notice sent by him returned to him unserved. But in all other cases where the notice sent is returned to the sender within a reasonable time, such sender will be obliged to invoke the presumption of due service only on the date on which the sender receives back the returned notice. 29. I find considerable force in this submission made by the learned counsel for the appellant-complainant. Section 138 must, notwithstanding the fact that it is a penal provision, receive an interpretation which would advance the purpose which the statutory provision seeks to achieve. A sender who sends the notice is entitled to presume that the notice addressed to the addressee in the correct address will be served. He is entitled to wait for a reasonable time in the anticipation that the service will be effected. My atte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iswanathan v. Surendran (1998 (1) KLT 694) in support of the contention that the date of knowledge of the complainant about the date of receipt of the notice of demand by the accused is irrelevant. I have no hesitation to accept this proposition also. Where the notice of demand under Section 138 has actually been received by the drawer of the cheque, the date of knowledge of the complainant about such receipt is irrelevant. The statutory clock would start ticking as soon as the notice of demand is received by the drawer of the cheque from the payee/holder in due course. Once the clock starts ticking, the knowledge of the sender about the fact of or the date of receipt becomes irrelevant and the period prescribed would run out starting from such date of receipt. 32. But not so when there is no receipt of the notice of demand by the accused. In the instant case it is not a case of receipt or refusal of the notice. It is only a case of on-service consequent to the conduct of the accused not being available at his residence (deliberately or otherwise) and his conduct of not making any arrangement to receive the notice addressed to him at his correct residential address. When can pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an receive the notice. In the present case, the complainant made unnecessary rush in filing the complaint two days earlier . The learned Judge's opinion that the starting point of limitation has to be counted from the date on which the accused actually receives the notice or the date on which the accused can receive the notice appears to me to be eminently correct. Of course I am unable to agree that after the 7th day of the date on which the postal article reaches the post office of destination the addressee cannot claim/receive the notice on any day prior to its actual return to the complainant. According to me it is open to the addressee to claim the notice from the postal authorities and receive the same even after the 3rd/7th day. It would then be impermissible to draw presumption of due service on any day prior to day of actual return to the sender. 36. The controversy can be reckoned as set at rest by the decision of the Supreme Court in K. Bhaskaran v. Sankaran Vaidhyan Balan (1999) 7 SCC 510). In paragraph 25 of the said decision which I extract below the Supreme Court has stated categorically that when a notice is returned by the sendee as unclaimed, such date w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the offence punishable under Section 138 of the Negotiable Instruments Act are proved against the accused. 40. Coming to the question of sentence, I do note that the cheques are dt. June/July 1990. Section 138 of the Negotiable Instruments Act was brought into the statute book only in 1988. Notwithstanding the unworthy stand taken by the accused, I am of opinion that a deterrent substantive sentence of imprisonment need not be imposed on the accused. I have already adverted to the principles governing imposition of sentence in a prosecution under Section 138 of the Negotiable Instruments Act in the decision in Anil Kumar v. Shammy (2002(3) KLT 852). I am satisfied that a lenient substantive sentence of imprisonment coupled with an appropriate direction under Section 357(3) Cr. P.C. coupled with appropriate default sentences shall serve the ends of justice ideally. 41. In the result i. These appeals are allowed. ii. The impugned common judgment is set aside. iii. The respondent-accused is found guilty, convicted and sentenced in all the three cases to undergo imprisonment till rising of court. iv. The accused is further directed under Section 357(3) Crl. P.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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