TMI Blog2021 (3) TMI 899X X X X Extracts X X X X X X X X Extracts X X X X ..... he notice sent through courier service that it has been recorded that the same was served upon Umesh Kumar, who is the son of the petitioner. Thus, this Court finds that notice was sent through two modes; once through registered post and another through courier service and so far as the registered post is concerned, the same was served upon the petitioner for which the certificate of the post office i.e. Exhibit-6 was exhibited and so far as the courier service is concerned, it is only this courier notice which was served upon the son of the petitioner. This Court finds that there is consistent finding of the learned courts below in connection with service of the registered notice regarding cheque bouncing upon the petitioner after due appreciation of the materials on record particularly Exhibit-5 and Exhibit-6 - the contention of the learned counsel for the petitioner that the notice was served upon the son of the petitioner and not upon the petitioner is devoid of any merit. Discharge of onus regarding presumption of cheque - HELD THAT:- In the instant case, the specific case of the complainant was that he was to invest in the business of the accused and in lieu of that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er submits that it was the specific case of the complainant himself that he was to invest in the business of the accused and in lieu of that, he would be entitled to get 40% profit. He further submits that there have been no accounts regarding profit and the cheques were issued only by way of security and not against any existing debt or liability. The further point which has been argued by the learned counsel for the petitioner is that it is come in the trial court's judgment that the notice was served upon the son of the petitioner and therefore it is submitted that the notice was not served upon the petitioner. He submits that these aspects of the matter have not been properly considered by the learned courts below and accordingly both the judgments are perverse and fit to be set- aside. 6. Learned counsel for the petitioner has relied upon the judgment passed by the Hon'ble Supreme Court reported in (2014) 12 SCC 539 para-12 onwards. Arguments of the opposite party-State 7. Learned counsel appearing on behalf of opposite party-State has relied upon a judgment passed by the Hon'ble Supreme Court reported in (2007) 14 SCC 750 to submit that there is no ille ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him about the dishonor of the cheque. The accused requested the complainant not to take any legal action and issued a fresh cheque of ₹ 55,000/- with a request not to produce the same in the bank till first week of March, 2004. On 10.03.2004, another cheque was issued by the accused amounting to ₹ 5,000/-. The complainant was requested by the accused to deposit the said two cheques of ₹ 55,000/- and ₹ 5,000/- after 21.03.2004. On 28.03.2004, the accused requested the complainant not to produce the said cheques before the bank for encashment as the accused was unable to arrange sufficient funds. Thereafter , the complainant received a letter from the accused intimating the complainant that cheque issued by the accused was issued as a security and the accused asked for another ₹ 50,000/- for investment. After receiving the said letter dated 27.03.2004 of the accused, the complainant met the accused at his residence on 07.04.2004 and the accused informed the complainant that he wrote the letter dated 27.03.2004 on wrong advice of his friend and the accused sought three months from the complainant for depositing sufficient fund in his bank account. On 30.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the accused Ranglal Ram marked as (Exhibit-5) (xi) Letter issued by the learned Advocate of the complainant to the Sub-Post Master, Sub-Post Office, Balidih, Bokaro Steel City, Bokaro marked as (Exhibit-6). 12. As per the impugned judgements ,the statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, wherein he admitted that M/s. Kala Enterprises belongs to him and he also admitted that he gave in writing to the complainant to give 40% of his profit. He also admitted having written a letter to the complainant requesting for another ₹ 50,000/- over and above ₹ 1,00,000/- taken by him and told that he has nothing to say in his defence. The accused did not choose to adduce any evidence in his defence. 13. The learned trial court, after considering the evidences recorded a finding that on 16.02.2004, the accused gave a cheque of ₹ 55,000/- and on 10.03.2004, he gave another cheque of ₹ 5,000/- to the complainant and both the cheques were presented by the complainant for encashment on 31.07.2004 which were dishonored because of insufficient fund . The complainant issued notice dated 17.08.2004 within 30 days of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 19.08.2004 and accordingly, he has submitted that since the notice has been served upon the son of the petitioner, the same cannot be said to be service of notice upon the petitioner. 16. This Court has considered both the judgments passed by the learned courts below and it is apparent therefrom, that the legal notice regarding bouncing of cheque was sent through registered post as well as through courier service and the learned trial court at para-8 of its judgment has considered the service of legal notice through registered post i.e. through post office as well as the notice sent through courier service. In fact, the learned trial court has recorded that the post office has given in writing that notice i.e. Exhibit-5 and registered letter No. A-976 dated 17.08.2004 was delivered to the payee on 19.08.2004 for which a certificate of the post office was also exhibited and marked as Exhibit-6 and it is only in connection with the notice sent through courier service that it has been recorded that the same was served upon Umesh Kumar, who is the son of the petitioner. 17. Thus, this Court finds that notice was sent through two modes; once through registered post and another ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds that the learned court below has dealt with the plea of the petitioner regarding applicability of Sections 138 to 142 of the N.I. Act and in view of the presumption raised under Section 139 of the N.I. Act, the aforesaid plea of the petitioner has no legal basis. Admittedly, the petitioner did not adduce any defence evidence. There is no material on record to show that the reverse burden upon the petitioner regarding the cheque having been issued against a debt or any liability has not been discharged at all and therefore the presumption under section 139 of Negotiable Instruments Act, 1881 remained intact. 21. Accordingly, both the points which have been raised by the petitioner during the course of argument are devoid of any merit and are hereby rejected in absence of any perversity or illegality in the impugned judgments passed by the learned courts below. 22. This Court finds that the learned courts below have not committed any error, illegality or perversity in convicting the petitioner for bouncing of the aforesaid two cheques. 23. Accordingly, this revision petition is dismissed. 24. The bail bonds furnished by the petitioner is hereby cancelled. 25. Let th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
