9911796707
TMI Blog2004 (12) TMI 725X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 18-1-2001 by Registered Post A.D. informing the accused about the cheque and calling upon the accused to make payment due on the said cheque within 15 days. According to the complainant, the accused was intimated about the notice by postal authorities on 26-1-2001 and the said postal notice was returned by the postal authorities, and, as the accused failed to make the payment, the complainant filed the complaint against the accused under section 138 of the Act. 4. In support of the complaint, the complainant, which is a registered company, examined its Managing Director and produced the necessary documents, namely, a resolution of the company, the said cheque, the memo of return of cheque unpaid, the postal article/notice returned by the Postal Authorities and a copy of notice. The accused did not produce any evidence, but in his statement recorded under section 313 of the Code of Criminal Procedure, 1973 (Code, for short), stated that he had issued the said cheque as a security and not by way of any liability. The accused also stated that he was a Contractor and had taken up the contract of erecting a building for the complainant company which owed to him Rs. 3 lakhs and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter v. O.P. Poddar)3, reported in 1983(4) S.C.C. 701, the Supreme Court had held that it is clear that anyone can set the criminal law in motion by filing a complaint of facts constituting an offence before a Magistrate entitled to take cognizance. The Court further observed that no Court can decline to take cognizance on the sole ground that the complainant was not competent to file the complaint. It has been held that if any special statute prescribes offences and makes any special provision for taking cognizance of such offences under the statute, then the complainant requesting the Magistrate to take cognizance of the offence must satisfy the eligibility criterion prescribed by the statute. The Court further observed that in that case the only eligibility criterion prescribed by section 142 was that the complaint must be by the payee or the holder in due course. This criterion was satisfied as the complaint was made in the name and on behalf of the appellant company. 9. As already stated, the complaint in the case at hand was filed by the company through its Managing Director pursuant to the resolution passed by the Board of Directors of the said company which was signed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iance on the case of (K. Bhaskaran v. Sankaran Vaidhyan Balan & another)5, 2000(5) Bom.C.R. (S.C.)178 : 1999 S.C.C. (Cri.) 1284. Before referring to this case it will not be out of context to refer to the case of (M/s. Madan and Co. v. Wazir Jaivir Chand)6, 1989(1) S.C.C. 264 wherein the Supreme Court dealt with a notice despatched by registered post and in this context the Supreme Court observed that all that a landlord can do to comply with this provision is to post an acknowledgement due or otherwise containing the tenants correct address and once he does this and the letter is delivered to the post office, he has no control over it. It is then presumed to have been delivered to the addressee under section 27 of the General Clauses Act. Under the rules of the post office, the letter is to be delivered to the addressee or a person authorised by him. Such a person may either accept the letter or decline to accept it. In either case, there is no difficulty, for the acceptance or refusal can be treated as a service on, and receipt by, the addressee. The difficulty is where the postman calls at the address mentioned and is unable to contact the addressee or a person authorised to rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrect address. The Court then referred to the Blacks Law 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 unclaimed 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 can 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 really not served and that he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot and the presumption under section 27 of the General Clauses Act of deemed service would depend upon evidence which would be adduced in the trial. 18. In the case of (S.S. Ummul Habiba, Proprietor, M/s. Alim Auto Supplies v. B. Rajendran)10, 2004(3) Crimes 505 the Madras High Court referring to the case of K. Bhaskaran v. Sankaran Vaidhyan Balan (supra) held that : "27. "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 cannot be applied to the case in hand. In my view 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. Although, in appropriate cases, deemed service is to be accepted by the Court, such presumption of deemed service is not a matter of course in all cases. To raise the presumption of deemed notice, there should be clear averment in the complaint that the appellant/complainant had sent the statutory notice on demand intimating the dishonour of cheque and that the respondents/accused were evading the service. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... General Clauses Act, 1897 and as stated by the Supreme Court in the case of K. Bhaskaran v. Sankaram Vaidhyan Balan (supra) that he was really not served and he was not responsible for such non-service. In the light of that, the learned Judicial Magistrate, First Class was not right in dismissing the complaint for want of service of notice. 23. Coming to the merits of the case and the presumption available to the complainant under section 139 of the Act that the cheque was issued for the discharge of debt or liability, Mr. Coutinho has submitted that the conclusion arrived at by the learned Judicial Magistrate, First Class is a plausible conclusion which the Court sitting in appeal against acquittal ought not to interfere and in support of this submission Mr. Coutinho has placed reliance on Division Bench JUDGMENT of this Court in the case of (Mehmud Mohammed Chabukswar v. State of Maharashtra)14, 1999(Supp.) Bom.C.R. 409 : 1998(3) Mh.L.J. 731, wherein the Division Bench observed that although the Criminal Procedure Code makes no distinction between the powers of Appellate Court in an appeal against conviction from those in an appeal against acquittal but the case law which has cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment of this Court in the case of (Shri Prabhakar D. Naik v. Shri Jerry S. Viegas & another)16, 2002 Bom.C.R.(Cri.) (P.B.)623 : 2002 All.M.R.(Cri.) 607, wherein this Court observed that for rebutting the presumption under section 139 of the Negotiable Instruments Act, 1881, it is not necessary for the accused to rebut it by proof beyond reasonable doubt. The accused can rebut the said presumption either by leading evidence himself or by relying upon admissions and circumstances as appearing in the evidence of the prosecution. The accused is required to rebut the presumption by preponderance of probabilities. In other words, the accused is required to probablise his defence. 26. Section 139 of the Act deals with presumption in favour of holder, and, it provides that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in section 138, for the discharge, in whole or in part, of any debt or other liability. 27. There can be no dispute that the said presumption available under section 139 of the Act in of the complainant is a rebuttable presumption. However, that presumption could not be rebutted only by way ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
