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2006 (7) TMI 733 - BOMBAY HIGH COURTDishonour Of Cheque - Offence punishable u/s 138 of the Negotiable Instruments Act - Non-compliance of the notices - Presumption u/s 27 of the General Clauses Act - conviction of the accused - HELD THAT:- In this case, the notice was sent by registered post to the correct address of the accused and the same is therefore deemed to have been served on the accused in terms of Section 27 of the General Clauses Act, 1897. The presumption available u/s 27 cannot be rebutted either by way of mere suggestion or by mere denial in the statement u/s 313 of the Code. The courts below have rightly concluded that the notice was duly served on the accused. 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 was 238.34. If the balance amount of the accused in the account never exceeded a sum of ₹ 245/-, one fails to understand as to what sort of security the accused had given to the complainant by way of the said cheques. The learned acquitting J.M.F.C. has proceeded to examine the case of the complainant as if the complainant had no presumptions in his favour. She might have been right in case the law did not create the three sets of presumptions which have been created. This is a case, as already noted, where the complainant had discharged his initial burden that he had advanced to the accused a sum of ₹ 1,70,000/- and in payment of the same, the accused had given the said three cheques. In my view, considering the facts of the cases, the learned acquitting J.M.F.C. was certainly not justified in acquitting the accused u/s 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, 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 and, therefore, the same is hereby dismissed. As regards Criminal Appeal, for the very reasons discussed herein above, the acquittal of the accused u/s 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, therefore, deserves to be set aside and consequently the accused is hereby convicted u/s 138 of the Act for failing to pay the amount due to the complainant under the said cheque of ₹ 70,000/- dated 1.12.2003. At the time of hearing on the point of sentence on behalf of the accused, the sentence imposed by the convicting Magistrate has been brought to my notice. In the said case, for default in payment of the amount due on the cheque of ₹ 1,00,000/-, the learned J.M.F.C., was pleased to sentence the accused to undergo S.I. for two months and to pay a compensation of ₹ 1,00,000/-, and in default ordered the accused to undergo six month S.I. With a view not to have disparity in the sentence, I hereby sentence the accused u/s 138 of the Act, to undergo S.I. of 45 days and to pay compensation of ₹ 70,000/ - in default to undergo S.I. of four months. The sum of ₹ 50,000/- deposited by the accused before the trial Court pursuant to Order dated 13.04.2006, shall be paid to the complainant, to be adjusted from the compensation ordered to be paid. By consent, the accused is given time of two weeks either to surrender or pay the amount due.
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