2012 (11) TMI 1303 - HC - Indian Laws

Summary

Issues Involved:
1. Conviction and sentence under S.138 of the Negotiable Instruments Act, 1881.
2. Service of statutory notice u/s 138(b) of the Act.
3. Presumption under S.118 and S.139 of the Act.
4. Rebuttal of statutory presumption by the accused.
5. Interpretation of service of notice under S.27 of the General Clauses Act.

Summary:

1. Conviction and Sentence under S.138 of the Negotiable Instruments Act, 1881:
The respondent-complainant filed a case (C.C. No. 286/2004) against the petitioner-accused for a bounced cheque of Rs. 12,00,000/-. The accused was convicted and sentenced to pay a fine of Rs. 24,00,000/-. The accused appealed (Crl.A. No. 20/2007) and during the appeal, a compromise was reached where the accused agreed to pay Rs. 12,00,000/-. The accused issued four post-dated cheques, one of which was dishonored with the endorsement 'payment stopped by the drawer'. The trial court convicted the accused under S.138 of the Act, sentencing him to six months imprisonment and a fine of Rs. 5,000/-, with additional imprisonment in default of payment.

2. Service of Statutory Notice u/s 138(b) of the Act:
The accused contended that the complaint was not maintainable due to non-service of notice as required u/s 138(b). The notice sent by RPAD was returned with the endorsement 'an initial of the addressee differs', but the notice sent by certificate of posting was not returned. The court held that the notice was evaded by the accused and deemed to have been served.

3. Presumption under S.118 and S.139 of the Act:
The court inferred the presumption under S.118 that the cheque was made for consideration and under S.139 that the cheque was received for discharge of debt or liability. The accused failed to rebut these presumptions.

4. Rebuttal of Statutory Presumption by the Accused:
The accused did not provide proof of sufficient funds in his account at the time of cheque presentation and did not state a valid reason for stopping the payment. The court concluded that the stop-payment instruction was due to insufficient funds, not any valid cause, thus failing to rebut the statutory presumption.

5. Interpretation of Service of Notice under S.27 of the General Clauses Act:
The court referred to precedents (Madan & Co. and C.C. Alavi Haji) to conclude that service of notice is deemed effective when sent to the correct address by registered post. The accused's act of avoiding the notice by pointing out the difference in initials was considered a scheming act to evade service. The statutory presumption under S.27 of the General Clauses Act was applied, deeming the notice served.

Conclusion:
The petition was dismissed, and the accused was granted time till 31st December 2012 to deposit the balance compensation amount. In default, the bail bond and surety would be canceled, and the accused would have to surrender to serve the sentence.