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TMI Blog2003 (11) TMI 644X X X X Extracts X X X X X X X X Extracts X X X X ..... le under Section 138 of the Negotiable Instruments Act, 1881 ("the Act" for short) and sentenced him to suffer S.I. for one year and directing him to pay fine of Rs.5,000/- and in default of payment of fine, the petitioner was directed to undergo further S.I. for three months. 2. The facts of the case of the complainant before the trial Court may be briefly stated as follows : According to the case of the second respondent, the second respondent has been dealing with sale of chemicals at Ahmedabad. According to the case of the second respondent before the trial Court, the petitioner herein is a company registered under the Companies Act, 1956. That the petitioner used to purchase goods from the second respondent on credit and an account was also kept in the books of account of the second respondent. The second respondent used to issue bills for the goods purchased by and delivered to the present petitioner. That on completing the account, an amount of Rs.1,12,359/- was found to be due to the second respondent by the petitioner. Therefore, the second respondent demanded the said amount. That at that time, the petitioner issued four cheques as follows : 1. Cheque No. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of the petitioner under Section 313 of the Code. There also the petitioner did not plead guilty and contended that a false case was made out against the petitioner. The trial Court heard oral arguments advanced before it by the learned advocates for the parties. Thereafter, the trial Court pronounced the judgment and convicted and sentenced the present petitioner as aforesaid. 8. Feeling aggrieved by the said judgment and conviction order of the trial Court, the petitioner preferred Criminal Appeal No. 3 of 2002 before the City Sessions Court at Ahmedabad. The said appeal came to be heard by the learned Addl. Sessions Judge, Court No. 16 of the said Court. The learned Judge by judgment and order dated 30th September, 2002 dismissed the said appeal of the present petitioner. Hence, this revision application. 9. The petitioner has contended in this revision application that the judgments and orders of the two courts below are illegal and perverse and deserve to be set aside. That the learned Addl. Sessions Judge has not considered the contentions raised by the petitioner before the said Court. That though the second respondent has claimed that an amount of Rs.1,12,359/- was due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. On receiving the revision application, Rule was issued and in response to the service of notice of Rule learned A.P.P. Mr. S.S.Patel has appeared on behalf of the respondent No. 1-State, learned advocate Mr. F.B.Brahmabhatt has appeared on behalf of respondent No. 2. I have heard the learned advocates for the parties. They have taken me through the oral and documentary evidence on record. 12. In fact, the petitioner's case was argued initially by learned advocate Mr. M.B.Gandhi. Learned advocate Ms. Gandhi also argued on behalf of the petitioner. Now if we go through the case of the second respondent before the trial Court, it is very clear that as per the case of the second respondent, the petitioner used to purchase goods on credit from the second respondent and bills were issued by the second respondent for the said sale. That at the end of the transaction, an amount of Rs.1,12,359/- was due to the second respondent by the petitioner and as against that, four cheques as aforesaid were issued by the petitioner in the name of the second respondent. The cheques were dishonoured and therefore, the complaint was filed after issuance of notice of demand. 13. In order to su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintaining books of accounts of Western Chemicals and he has shown his readiness to produce copies thereof on the record of the case. He has further stated that he is prepared to produce the bills of goods supplied to the petitioner. He has also deposed that at the time of recording the orders, the signatures are obtained on order slips and he has shown his readiness to produce those slips also. 17. Then he has stated that as per the system of the market, cheques are issued at the time of the placement of orders. However, he has clarified that the cheques are issued in accordance with the terms and conditions of the contract after the receipt of the goods. He has further stated that he has not rendered explanation with respect to the additional amount of Vikas Chemical, in his complaint. He has denied that there was a dispute about the price of goods. He has also denied that the goods in question was not supplied by the second respondent to the petitioner. 18. Then there is the evidence of witness Vithhalbhai Karshanbhai Prajapati at Exh.20. He has been serving as a Branch Manager in Vijay Co-operative Bank, Nehru Bridge Branch at Ahmedabad. He has deposed before the trial Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been proved beyond reasonable doubt that the cheques in question were really issued and signed by the petitioner in favour of the second respondent. The petitioner has also not challenged the said fact during the cross-examination of the second respondent. The petitioner's further statement was recorded under Section 313 of the Code and there also he has not disputed his signatures in the said cheques. On the contrary, he has given a reply to the second question that the cheques were issued as deposit and not against the delivery of goods which would clearly mean that even according to the statement of the petitioner, the petitioner had issued the cheques in favour of the second respondent. 24. Here the provisions of Section 118 of the Act are required to be considered. The said Section may be reproduced for ready reference as follows : 118. Presumption as to negotiable instruments.-Until the contrary is proved, the following presumptions shall be made- (a) of consideration, that every negotiable instrument, was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed negotiated or transferred, was accepted, endorsed negotiated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xplain the position during the course of his further statement under Section 313 of the Code. The petitioner never explained the said position. Moreover, even with respect to the said explanation rendered by the second respondent during the course of his evidence, no further cross-examination has been undertaken with a view to bring further material from the cross-examination of the second respondent. So on one hand, the difference of the two amounts has been explained by the second respondent during the course of his evidence before the trial Court, on the other hand even during the cross-examination, the said fact was not seriously challenged, thirdly the petitioner has not explained the said position during the course of his further statement under Section 313 of the Code. In that view of the matter, it has to be accepted that the difference in two amounts has been satisfactorily explained by the second respondent during the course of the evidence. On the other hand, we find that the petitioner has not made any effort to rebut the presumption. When a statutory presumption arises in favour of the second respondent, it becomes the responsibility and liability of the petitioner to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. This is again a finding of fact which cannot be interfered with unless it is found to be illegal and perverse. 36. Under Section 27 of The General Clauses Act as well as under Section 6 of the Post Office Act, a presumption would certainly arise in favour of service of notice when a prepaid registered post has been dispatched and postal acknowledgment has been produced on record. 37. We can find from the cross-examination of the second respondent that so far the service of notice is concerned, the petitioner did not cross-examine the second respondent. On the other hand, the second respondent has produced copy of notice, postal acknowledgment and certificate of posting at Exh.16 to 19 before the trial Court. 38. The petitioner has stated in his further statement that he did not receive the notice and the postal acknowledgment on record did not contain his signature. Again when the notice was dispatched at the correct address and when postal acknowledgment has been produced on record, then again it has to be presumed that the notice was served upon the petitioner. Mere denial about his signature on the postal acknowledgment by the petitioner is quite insufficient. 39. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... side is always at liberty to rebut the said presumption. It has further been observed that mandatory presumption has to be rebutted by proof and not by mere explanation. In the present case, we find that there is absolutely no proof about the rebuttal of presumption and in absence of any proof, the presumption stood un-rebutted and therefore, the consideration is required to be held to have been proved by the second respondent. 44. In K. Bhaskaran v. Sankaran Vaidhyan Balan and another, reported in MANU/SC/0625/1999, the Hon'ble Supreme Court has observed that if a notice required under a statute has been sent and if it has been returned as unclaimed, then giving of notice is complied with. It has also been laid down that 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. Such non-service on the person addressed on the notice has not been challenged. The postal acknowledgment has been produced on record. A second copy of the notice has been served under certificate of posting. The ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. Then there was nothing wrong with the second respondent in relying upon the statutory presumption under Section 118 of the said Act referred to hereinabove in order to prove consideration of cheques, service of notice etc. 50. The above aspects clearly go to show that the petitioner had issued the cheques against the consideration as per the presumption in favour of the second respondent. That the second respondent has issued statutory notice of demand to the petitioner ; that it was duly served upon the petitioner. That the petitioner did not reply or comply with the same. That the cheques were dishonoured and though dishonoured they were again presented within the period of limitation. So all the requirements of Section 138 of the Act are complied with and there is no flaw either statutory or procedural or otherwise. Therefore, when the petitioner failed to see that the cheques are honoured and when the cheques have been dishonoured, the offence is made out. The trial Court as well as the Sessions Court, both have appreciated the factual as well as legal aspects properly. There is no error committed in procedure. It cannot be said that the petitioner was not given a reasonab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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