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TMI Blog2022 (5) TMI 467X X X X Extracts X X X X X X X X Extracts X X X X ..... he appeal. 3. In gist, the fact of appellant's case is that the appellant is a company incorporated under the companies Act, 1956 having its place of business at 13A, Government Place East, Kolkata- 700 069. Respondent No 2 is a company incorporated under the companies Act, 1956 having its place of business at 10, Canning Street, Kolkata and Respondents no. 3 to 5 are the Directors of Respondent no. 2 Company. 4. A complaint was lodged on behalf of the appellant company before the court of learned Chief Metropolitan Magistrate, Calcutta disclosing an offence committed by Respondents no. 2 to 5, punishable under section 138/141 of the Negotiable Instrument Act (herein after referred as the N.I. Act). 5. In discharge of their existing liability in respect of the loan taken from the Appellant company, Respondents no. 2 to 5 issued an account payee cheque bearing no. 212779 dated 29.5.2000 for Rs. 5,12,188/- drawn on Bank of India, Calcutta Overseas Branch, in favour of the appellant company. 6. The said cheque was placed for encashment but was returned dishonoured on 24.8.2000 with the remark "Exceeding Arrangement". The appellant company thereafter sent a Notice dated 2.9.2000, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rosecution. 14. It is contended by learned Advocate for the appellant that PW-3, stated in his evidence that Exhibit 12, is a true copy of the demand notice sent by the appellant company to the Respondents no. 2 to 5 but Learned Magistrate without appreciating the fact that service of the notice was also admitted during examination under section 313 of Cr. P.C committed grave error in law by not relying on the copy of demand notice (Exhibit 12) which was admitted in evidence without any objection by defence. 15. According to the appellant learned Magistrate failed to appreciate that under sections 138 proviso (b) of the Negotiable Instrument Act it was necessary to send a notice by the holder of the cheque and receipt of such notice by the drawer of the cheque. In the instant case Respondents no. 2 to 5 have not denied that demand notice was not served upon them. Therefore, learned Magistrate by acquitting the Respondents no. 2 to 5 on a finding that content of notice has not been proved has committed grave error in law and caused prejudice to the petitioner. 16. The appellant has preferred this appeal against the judgment of acquittal on the grounds inter alia, that learned Mag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent case Notice demanding payment of the cheque amount was issued to the Respondents no. 2 to 5 under registered post the said Notice were served upon the respondents and the postal A/D Cards bearing the signatures of the addresses were returned to the appellant/complainant. The original notice was served upon the accused respondents. Therefore, the appellant at the time of adducing evidence has produced a photo copy of the notice, the original of which had already been dispatched. In support of prove of delivery of the Notice the postal A/D Cards were also produced as Exhibit 10 (collectively) and when the photo copy of the notice was admitted in evidence and marked as Exhibit 12, no objection was raised by the accused respondents. Therefore, the finding of learned Magistrate that the demand notice is not proved and by his not attaching any evidentiary value to it has yielded to an erroneous finding which is not legally tenable. 20. It is argued on behalf of the appellant that the entire purpose of giving a Notice to the drawer is to give an opportunity to him to pay the cheque amount within 15 days of service of notice with copy of complaint and thereby free himself from the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment is liable to be set aside and reversed. 23. To buttress his argument, learned advocate relied upon the decision in the case of Dayamathi Bai vs. K.M. Shaffi; 2004(7) SCC 107, wherein it has been held that where copy of documents are admitted without objection in the trial court, no objection to their admissibility can be taken afterwards, in the court of appeal. The proposition of law set out in the above decision is that, if a document is in itself not inadmissible but that the mode of proof was irregular and insufficient, objection as to the mode of proof falls within procedural law, therefore, such objections could be waived. They have to be taken before the document is marked s admitted to the record. 24. In Dayamathi Bai (supra) the principle of law set out and reiterated is that, "Ordinarily, and objection to the admissibility to evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in the evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does to dispute the admissibility of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rfere with the impugned judgment and the appeal is liable to be dismissed. 27. I have carefully considered the impugned judgment, the evidence adduced by prosecution witnesses and the defence witnesses as well as the documents exhibited in support of their respective cases. It is undisputed that Respondents No.3 to 5 are the Directors of respondent no. 2 company. The allegation in the complaint is that in discharge of their existing liability in respect of a loan taken by the accused company from the complainant, its three Directors, Dinesh Chandra Meheta, Chaner Pal Meheta and Hiten D Meheta in control of the affairs of the company issued a cheque bearing 212779 dated 29.05.2000 for Rs. 5,12,188/- (Exhibit 1) drawn on Bank of India, Calcutta Overseas Branch, in favour of the complainant. The said cheque was presented to Global Trust Bank Chowringhee Branch, Calcutta within its valid period of for encashment but the same was returned dishonoured on 24.08.2000. Demand notice was issued on 02.09.2000 and sent to the accused persons through the advocate of the complainant under registered post with AD and the same was served upon accused no. 1 and 3 on 06.09.2000 and on accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence without objection it is not necessary to prove its contents. The accused respondents were fully aware about their liability and drawing of cheque in favour of the complainant company. They were also aware that the cheque was dishonoured and the same may be gathered from the evidence on PW1, 2 and 3 as well as the cheque returned memo. 31. Having considered the argument advanced by the learned advocates for the appellant and respondent state and the materials on record, I hold that learned Magistrate ahs committed an error in law by not placing reliance upon the demand notice and observing in his judgment that the demand has not been proved. Once a document is admitted in evidence without any objection the legal consequence is that reliance has to be placed upon its content unless the same is disputed. Being fortified with the ratio of decision reported in the case of Dayamathi Bai Vs. K.M Shaffi; 2004 (7) SCC 107, I hold that omission to raise objection at the time of admission of Exhibit 12 in evidence is fatal to the defence case and there is no reason to relegate the validity of the document as not prove. The evidence on record is cogent and consistent and the same establ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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