TMI Blog2017 (8) TMI 1013X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the order of the trial Court, as has been confirmed by the order of the First Appellate Court. Quantum of sentence is concerned, the Court below has sentenced the accused to undergo Simple Imprisonment for six months and had directed the petitioner/accused to pay the cheque amount as compensation in terms of Section 255(2) of the Code of Criminal Procedure. The petitioner is a woman, considering the said factor, though the Court is empowered to punish the accused under Section 138 of the NI Act, to an extent of two years maximum punishment, this Court is of the view that the punishment given by the Trial Court as confirmed by the First Appellate Court, can be modified to the extent that the petitioner/accused is convicted and sentenced to undergo Simple Imprisonment for a period of three months. Quantum of compensation is concerned, since the loan amount was ₹ 10 lakhs and as a part payment, the cheque was issued by the petitioner for a sum of ₹ 9,25,000/- only, this Court feels that the said compensation, equal to the cheque amount is not on the higher side and therefore, such compensation does not warrant any interference. - Crl.RC.No.406 of 2017 and Crl.M. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eque was presented by the respondent at her Bank namely, Canara Bank, Royapettah Branch, Chennai-14 on 11.11.2007. However, the cheque was returned dishonoured for the reason that Payment stopped by the drawer . The said Memo of the drawer's Bank dated 13.11.2007 along with the intimation of the respondent's Bank dated 14.11.2007, was received by the respondent with the returned cheque. Thereafter, the respondent caused a notice to all the three persons demanding them to pay back the said amount of ₹ 9,25,000/- being the cheque amount, on 21.11.2007. The said notice sent by the respondent was served on all the three persons on 22.11.2017. Even after the receipt of notice, the petitioner and her son and husband namely, Kumar and Ramanathan, did not come forward to settle the amount. Hence, the respondent had filed the said complaint before the trial Court under Section 138 of the Negotiable Instruments Act. 7.In fact, the respondent had issued a single notice to all the three persons even though the cheque was issued in the name of Sujatha Ramanathan, the mother of Kumar, the petitioner herein. Therefore, the respondent filed the complaint against all the three pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt, had conducted the case. 12.However, the trial Court, after having considered all these aspects, though acquitted A1 and A3 but, convicted the petitioner, who was A2, for an imprisonment of six months and also ordered compensation equal to the cheque amount. 13.The said defences taken by the petitioner, before the trial Court, have once again been reiterated before the First Appellate Court also. The Appellate Court by giving its anxious consideration to such of those defences taken by the petitioner, has, in fact given answers to those defences and therefore, has confirmed the Judgement of the trial Court. 14.I have heard Mr.S.Elambharathi, learned counsel appearing for the petitioner and also I have heard the respondent, who is the party-in-person. 15.The learned counsel appearing for the petitioner has vehemently contended that the non issuance of statutory notice definitely would be a fatal to the complainant's case and without a statutory notice, no complaint can be maintained under Section 138 of the NI Act. In this regard, the learned counsel appearing for the petitioner has taken me to the copy of the notice issued by the complainant/respondent dated 21 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused, who is the husband of the 2nd accused and the father of the 3rd accused, had approached her for an arrangement of hand loan of ₹ 10 lakhs. When the respondent contacted the petitioner and her husband, they had also endorsed the desire of the 3rd accused, who is the son of the petitioner and the 1st accused and also they assured that once the hand loan is given by the respondent, the same would be returned back to her within a short period. 20.It was further submitted by the respondent that, believing their words, as they have been family friends of her father and her family for a longer time, the respondent claimed that she mobilized the funds and had given ₹ 10 lakhs by way of cash to all the three persons i.e., A1 to A3. 21.She further contended that, since the said amount was not repaid within a time as they assured, the respondent made several demands and pursuant to which, the cheque was issued by the petitioner, who is the 2nd accused, in her name, on 05.11.2007. When the said cheque was presented, it was returned as the drawer Stopped payment . Therefore, the respondent submitted that, knowing fully well the cheque had been given to the respondent, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al submissions made by the learned counsel for the petitioner as well as the respondent, who appeared party-in-person. 25.The main issue is that there was no statutory notice within the meaning of Section 138 of the NI Act. The defence taken by the learned counsel for the petitioner is that no notice individually has been sent to each of the accused persons including the petitioner. Secondly, he has taken a defence that there is no proof that the said notice dated 21.11.2007, issued by the respondent, has been served on the petitioner or the other two accused persons, who have been acquitted by the Courts below. 26.In this regard, on perusal of the notice as well as the postal acknowledgement card, one can easily find that the notice was addressed to all the three accused by specifically giving their names as Mr.Ramanathan, Mrs. Sujatha and R.Kumar to the address viz., New No.15, Old No.6, Nageswara Road, Nungambakkam, Chennai-34. The postal acknowledgement card further reveals that the notice was received by one Elumalai for the said Kumar. During the arguments, when it was asked by this Court to the learned counsel for the petitioner that who is that Elumalai, and it was re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee for one or the other reason, such as his non availability at the time of delivery, or premises remaining locked on account of his having gone elsewhere etc; it was observed that if in each such case, the law is understood to mean that there has been no service of notice, it would completely defeat the very purpose of the Act. It would then be very easy for an unscrupulous and dishonest drawer of a cheque to make himself scarce for sometime after issuing the cheque so that the requisite statutory notice can never be served upon him and consequently he can never be prosecuted. It was further observed that once the payee of the cheque issues notice to the drawer of the cheque, the cause of action to file a complaint arises on the expiry of the period prescribed for payment by the drawer of the cheque. If he does not file a complaint within one month of the date on which the cause of action arises under Clause (c) of the proviso to Section 138 of the Act, his complaint gets barred by time. Thus, a person who can dodge the postman for about a month or two, or a person who can get a fake endorsement made regarding his non availability, can successfully avoid his prosecution because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave happened, unless there are circumstances in a particular case to show that the common course of business was not followed. Thus, Section 114 enables the Court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. Consequently, the court can presume that the common course of business has been followed in particular cases. When applied to communications sent by post, Section 114 enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. But the presumption that is raised under Section 27 of the G.C. Act is a far stronger presumption. Further, while Section 114 of Evidence Act refers to a general presumption, Section 27 refers to a specific presumption. For the sake of ready reference, Section 27 of G.C. Act is extracted below: 27. Meaning of service by post. - Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14 of the Evidence Act in its proper perspective. It felt that presumption under Section 114 of the Evidence Act being a rebuttable presumption, the complainant should make certain necessary averments to raise the presumption of service of notice; that it was not sufficient for a complainant to state that a notice was sent by registered post and that the notice was returned with the endorsement out of station and that there should be a further averment that the addressee-drawer had deliberately avoided receiving the notice or that the addressee had knowledge of the notice, for raising a presumption under Section 114 of the Evidence Act. The following question was, therefore, referred to the larger Bench for consideration. Whether in absence of any averments in the complaint to the effect that the accused had a role to play in the matter of non-receipt of legal notice; or that the accused deliberately avoided service of notice, the same could have been entertained keeping in view the decision of this Court in Vinod Shivappa s case? 7. Dealing with the above question, this Court referred to K. Bhaskaran v. Sankaran Vaidhyan Balan[4], where this Court referred to Section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. Section 27 of the GC Act gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. It is not necessary to aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. 11...We must mention that in C.C. Alavi Haji, this Court did not deviate from the view taken in Vinod Shivappa, but reiterated the view expressed therein with certain clarification. We have already quoted the relevant paragraphs from Vinod Shivappa where this Court has held that service of notice is a matter of evidence and proof and it would be premature at the stage of issuance of process to move the High Court for quashing of the proceeding underSection 482 of the Cr.P.C. These obser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erits of the case, projected by the complainant and defended by the accused person. 31.It is a fact that the cheque was issued only in the name of the petitioner. The petitioner has not denied the execution of the cheque as well as the signature and it has been admitted that the cheque was issued only from the account of the petitioner and the signature available in the cheque also is of the petitioner. 32.Even though an alternative theory was attempted to be projected by the accused persons including the petitioner to state that, the cheque was obtained by the respondent by threat and coercion in the presence of the Police, absolutely no evidence to that effect, had been produced before the trial Court. In fact, the said point has not been canvassed before this Court, during the Revision, by the learned counsel for the petitioner. 33.The learned counsel appearing for the petitioner has relied upon the following Judgments in order to support the case of the petitioner. (1)2006 (3) CTC 730 M.S.Narayana Menon @ Mani vs. State of Kerala and another (2)(2008) 4 Supreme Court Cases 54 Krishna Janardhan Bhat vs. Dattatraya G. Hegde (3)(2008) 1 MLJ (Crl) 1431 (SC) S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... des submissions and the appeal grounds and the lower Court records, it has been found there is some discrepancies in the cross examination of PW1. But, it will not be affected the case of the complainant in the lower Court. The main contention raised by the appellant herein the statutory legal notice was not issued by the complainant. Hence, C.C.No.10816 of 2008 is not at all maintainable. But, on perusal of the documents marked through PW1 in the lower Court, the notice sent by the complainant to the accused dated 21.11.2007 has been marked as Ex.P.4 and the same was received by the accused and the postal acknowledgement card was marked as Ex.P.5. But, no reply notice was sent to the Ex.P.4 till today. Further, Section 138 of NI Act speaks about before filing the complaint, the complainant should send a notice within a stipulated period only. It is not mentioned as legal notice or lawyer notice. Hence, the complainant sent a notice to the accused on 21.11.2007 and it has been marked as Ex.P.4 in the Lower Court. Hence, the defence taken by the accused in the appeal not sustained in this score. 41.The learned Judge having considered this defence and by taking note of the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the order of the First Appellate Court. 44.Insofar as the quantum of sentence is concerned, the Court below has sentenced the accused to undergo Simple Imprisonment for six months and had directed the petitioner/accused to pay the cheque amount as compensation in terms of Section 255(2) of the Code of Criminal Procedure. The petitioner is a woman, considering the said factor, though the Court is empowered to punish the accused under Section 138 of the NI Act, to an extent of two years maximum punishment, this Court is of the view that the punishment given by the Trial Court as confirmed by the First Appellate Court, can be modified to the extent that the petitioner/accused is convicted and sentenced to undergo Simple Imprisonment for a period of three months. 45.Insofar as the quantum of compensation is concerned, since the loan amount was ₹ 10 lakhs and as a part payment, the cheque was issued by the petitioner for a sum of ₹ 9,25,000/- only, this Court feels that the said compensation, equal to the cheque amount is not on the higher side and therefore, such compensation does not warrant any interference. For all these reasons, this Criminal Revision Case f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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