TMI Blog2015 (7) TMI 1373X X X X Extracts X X X X X X X X Extracts X X X X ..... tained under Section 138 of the Act being penal in nature and moreso providing for a reverse onus, have to be strictly complied and when the Legislature has purposely used the term from receipt of the notice , it would not be possible to read into it the date of receipt of the intimation of the refusal, as the relevant date (in a case of deemed service/refusal of the notice by the accused). That, in my humble view, would be, doing violence to the language, which is otherwise plain and explicit. I also find that the possible prejudice, if any or the disadvantage caused to the complainant on account of the delayed receipt of an intimation of refusal can be adequately taken care of by the provisions permitting condonation of delay in filing the complaint. This is not to suggest that in every case this would be a sufficient ground for condonation of delay - the learned Magistrate has rightly come to conclusion that the complaint was not filed within time as the date of refusal has to be reckoned as 24/05/2011 and the complaint is filed on 13/07/2011. The learned Magistrate has also noticed that there was no prayer for condonation of delay. Even in the appeal or arguments advanced at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bhadang, J. 1. By this appeal, the appellant/complainant is challenging the acquittal of the first respondent/accused from an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (the Act, for short). 2. The brief facts, necessary for the disposal of the appeal, may be stated thus: That the appellant and the respondent were good friends. The first respondent had approached the appellant on 03/11/2010, requesting for a financial accommodation of ₹ 2 Lakhs, as he was in difficulty. Looking to their relationship, the appellant advanced a sum of ₹ 2 Lakhs to the first respondent on loan basis . On the same day, the first respondent passed a cheque for ₹ 2 Lakhs in favour of the appellant, which was drawn on the account of the first respondent with Bank of Baroda, Margao Branch. When the cheque was deposited by the appellant for encashment on 25/04/2011, the same was dishonoured, which was intimated to the appellant on 30/04/2011. Thereafter, the appellant issued a statutory notice on 14/05/2011, which was not claimed by the first respondent as per the endorsement dated 24/05/2011. The intimation about the refusal was left at the ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has placed reliance on the decision of the Hon'ble Supreme Court in Hiten P. Dalal Vs. Bratindranath Bangerjee, reported in (2001)6 SCC 16, in order to submit that once the accused admits the signature on the cheque, a presumption arises, which is a statutory presumption, in favour of the complainant. It is submitted that it is for the first respondent/accused to rebut this presumption on the basis of material, which would amount to proof and not by a bare explanation, which is merely plausible. He submitted that the first respondent has not led any evidence to rebut the effect of such presumption. He submitted that the defence set up by the first respondent that he is in the business of developing property and had engaged the services of the appellant for the purpose of conveyancing work and the cheque was given as an advance for the work of conveyancing, which was never done, cannot be accepted. He submitted that the first respondent ought to have shown that indeed he owns property and he is in the business of developing the same. He submitted that the defence itself is improbable as a person in the business of developing property would not have approached, seeking financial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal against acquittal is limited and in the absence of any illegality in the finding, recorded by the Magistrate, the appeal deserves to be dismissed. 8 . In view of the rival circumstances and the submissions made, following points arise for determination in this case: (1) Whether the complaint can be said to be filed within time? (2) Whether the appellant proves that the cheque was issued towards discharge of a legally enforceable debt. 9. Point No. 1 - The issue of limitation goes to the root of the matter and has to be taken up first. In order to appreciate the controversy, it would be necessary to set out the relevant provisions, which govern the field namely, Section 138 and Section 142(b) which read as under: 138. Dishonour of cheque for insufficiency, etc., of funds in the account:- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arding the return of the cheque as unpaid and; (iii) That the drawer of such a cheque fails to make the payment of the said amount of money to the payee or as the case may be to the holder in due course of the cheque within 15 days of the 'receipt of notice'. It can, thus, be seen that the offence contemplated under Section 138 of the Act is complete on the failure of the drawer to pay the amount within 15 days of the receipt of the said notice under proviso (c) to Section 138 of the Act. That affords a cause of action to the payee to file the complaint which under Section 142(b) of the Act has to be filed within a period of one month from the accrual of cause of action namely, the nonpayment of the amount by the drawer within 15 days of the receipt of the notice. At this stage, it may be noted that a proviso was added to Section 142(b) by the Amendment Act No. 55/2002 with effect from 06/02/2003, authorising the Magistrate to take cognizance of a complaint after the prescribed period of one month, if the complainant satisfies the Court that he had sufficient cause for not making the complaint within such period. Thus, by the said amendment, there was a clause in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sential to the economic life of a developing country like India. It has further been held that this, however, shall not mean that the Court shall put a blind eye to the ground realities. The Statute mandates raising of presumption, but it stops at that. It does not say how presumption drawn should be held to have been rebutted. Other important principles of legal jurisprudence namely presumption of innocence as human rights and a doctrine of reverse burden, introduced by Section 139, should be delicately balanced. Such balancing act indisputably would largely depend upon the factual matrix of each case, materials brought on record and having regard to legal principles governing the same. It has further been held that the Courts must be on guard to see that merely on the application of presumption as contemplated under Section 139 of the Act, the same may not lead to injustice or a mistaken conviction. 12. In the case of Rahul Builders Vs. Arihant Fertilizers and Chemicals and another, reported in 2008(2) SCC 321, the cheque was for ₹ 1 Lakh which was dishonoured. The appellant sent a notice, asking to remit ₹ 8,72,409 within 10 days. The High Court held that the noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut service. Of course there may be exceptional cases where the complainant sleeps over his rights and does not make enquiries about the notice sent by him. If within a reasonable time the notice is not returned, the complainant is certainly expected to make enquiries. If he does not draw the presumption of due service at the appropriate time by being indifferent to his own rights, such a complainant may not be justified in insisting that the presumption of due service can be drawn only if and when he gets the notice sent by him returned to him unserved. But in all other cases where the notice sent is returned to the sender within a reasonable time, such sender will be obliged to invoke the presumption of due service only on the date on which the sender receives back the returned notice. It can, thus, be seen that even in the case of Chacko (supra), the Court did not lay down as a universal proposition that in every case, the complainant/payee would be entitled to claim that it is the date of intimation of the refusal, that would lead to presumption of deemed service. That has been found to be dependent on the payee acting diligently and only where within a reasonable time the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheque) 15 days' period would be reckoned from that date. In those cases, where it is a case of deemed service, namely, where the notice is dispatched at correct address but returned by the addressee and not accepted, it would be from the date when the addressee returned the notice as unclaimed.......... 15. In the case of SIL Import, USA (supra), the notice was sent by fax as well as by Registered Post. It was held that the date when the notice was sent by fax would be sufficient compliance with the legal requirement and the complaint filed beyond 45 days of the fax notice, was rightly dismissed. 16. At this stage, it would be useful to refer to Section 27 of the General Clauses Act, 1897, which reads as under: 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 expression serve or either of the expressions give or send or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the docume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he notice is accepted and personally served on the drawer and the postal authorities take some time for delivering the acknowledgment to the payee. The question is whether in that case also, it can be claimed that the date of service would be the date of receipt of the acknowledgment by the payee. If not, we would be creating two clauses of cases, namely, a case, where the notice is accepted and served on the drawer, in which case, it would be that date, which would be relevant and another eventuality, where the notice is refused/not claimed, thereby raising a presumption of deemed served in which case, the relevant date would be the date of receipt of the intimation of refusal. Such an interpretation is neither conceivable nor appropriate. As noticed earlier, the obligations between the payee and the drawer alternate as provided for in clauses (a) and (b) to Section 138 of the Act. Under clause (a) of the proviso, it is for the payee to issue the notice within 15 days and, therefore, it is the date of the receipt of the intimation of dishonour, which is relevant. Obligation of the drawer is to pay within 15 days of the receipt of the notice and thus, it would logically follow that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, if any or the disadvantage caused to the complainant on account of the delayed receipt of an intimation of refusal can be adequately taken care of by the provisions permitting condonation of delay in filing the complaint. This is not to suggest that in every case this would be a sufficient ground for condonation of delay. The question would always be one of the fact as obtaining in each case. It can only be said that where the complainant is not found to have slept over his rights and had acted diligently in not waiting too long for such an intimation being received, can, in appropriate case, set this as a ground along with other attending circumstances. I, therefore, find that the learned Magistrate has rightly come to conclusion that the complaint was not filed within time as the date of refusal has to be reckoned as 24/05/2011 and the complaint is filed on 13/07/2011. The learned Magistrate has also noticed that there was no prayer for condonation of delay. Even in the appeal or arguments advanced at the bar, it was not urged that the delay, if any, may be condoned. The appellant all along claimed that the complaint is filed within time. Be that as it may, in the result, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raised under S.114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted...... (AIR p.580, para 12) (See also V.D. Jhingan V. State of U.P., AIR 1966 SC 1762; Sailendranath Bose V. State of Bihar, AIR 1968 SC 1292 and Ram Krishna Bedu Rane Vs. State of Maharashtra, (1973)1 SCC 366). 26. The presumption under Section 139 of the Act is a statutory presumption, which is evident from employment of the word 'shall'. Thus, the Court is obliged to raise such a p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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