TMI Blog2021 (5) TMI 975X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, the same is not sufficient to rebut the presumption which has been formed in favour of the complainant under Section 139 of N.I. Act regarding the existence of legally enforceable debt. The trial Court for the proven guilt of the accused for the offence punishable under Section 138 of N.I. Act, had sentenced the accused to undergo simple imprisonment for a period of six months and to pay a fine of ₹ 5,19,300/-, in default of payment of fine, to undergo simple imprisonment for a period of six months, in which, a sum of ₹ 5,14,300/- was ordered to be paid to the complainant. The Sessions Judge's Court in Criminal Appeal No. 69/2013 has confirmed the order on sentence. Criminal Revision Petition is partly allowed. - Criminal Revision Petition No. 948 of 2015 - - - Dated:- 23-4-2021 - Dr. H.B. Prabhakara Sastry, J. For the Appellant : Harish Kumar M.S., Advocate For the Respondents : Archana K.M., Amicus Curiae ORDER Dr. H.B. Prabhakara Sastry, J. 1. The present petitioner was accused in C.C. No. 191/2009, in the Court of learned Addl. J.M.F.C., Sagar, (hereinafter for brevity referred to as 'trial Court'). By its judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ufficient'. When the same was intimated to the accused, he asked the complainant to represent the cheque after fifteen days, so that, in the meantime, he would arrange the finance in his bank account. Accordingly, the complainant represented the cheque on 18.10.2008, which also returned dishonoured with the same shara as 'funds insufficient' on 20.10.2008. After bringing the same to the notice of the accused, he requested to represent the cheque once again. Accordingly, on 02.12.2008, the complainant represented the cheque, which also returned with the Banker's shara as 'funds insufficient' on 03.12.2008. The complainant got issued a legal notice to the accused on 16.12.2008 through his counsel under Registered Post Acknowledgment Due and also under Certificate of Posting. However, the notice sent under Registered Post Acknowledgment Due was refused by the accused, as such, it was returned to the sender. But, the notice sent under Certificate of Posting was delivered to the accused, but, he neither paid the cheque amount nor replied to the legal notice, which constrained the complainant to institute a criminal case against him in the trial Court for the offe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused were known to each other. It is also not in dispute that the cheque at Ex. P-2 was drawn by the accused and the same came to be returned when presented for its realisation by the complainant with the Banker's endorsement as 'funds insufficient' as evidenced in the Banker's endorsement at Ex. P-3. According to the complainant, who got himself examined as PW-1, after the dishonour of the cheque, he has got issued a legal notice to the accused, a copy of which he has produced and marked it as Ex. P-4 and the Postal receipt at Ex. P-5 and Certificate of Posting at Ex. P-6. However, the contention of the accused, as well the main argument of learned counsel for the accused (petitioner herein) is that no such notice was issued by the complainant and served upon the accused. Added to this, the accused who got himself examined as DW-1 also contended that he was an Electrical Contractor and the complainant was working with him, in that process, the cheque was left in the hands of the complainant by the accused which was misused by him in the present form. Thus, the complainant has committed breach of trust. 12. The complainant, apart from examining himself, also got ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Ex. D-4, a copy of the Ration Card at Ex. D-5 and the statement of Savings Bank account at Ex. D-6. Exs. D-1 to D-5 shows the place of the residence of the accused as not Sagar town. Though Exs. D-2 and D-3 shows his place of residence as a village called Kallalli, Khandika, Shiravante, Sagar, and Ex. D-4 shows the place of residence as Kallalli, Dombe, but, Exs. D-1 to D-5 shows the place of the village at Dombe. Ex. D-6 however shows his address as 'Adi Constructions, Proprietor Krishnamurthy, near Priya Motor Rewindings, Forest Office Road, Sagar'. 14. Though Exs. D-1 to D-5 go to show that the accused is not the permanent resident of Sagar, but, a village in the said Taluk of Sagar, which village may be either Dombe or Kallalli, but, his own document which his statement of Bank account at Ex. D-6 go to show that he has been running a business of a proprietary concern under the name and style of Adi Constructions in Taluka Headquarters at Sagar, which Bank account statement shows his address as near Priya Motor Rewindings, Forest Office Road, Sagar. Further, in the legal notice at Ex. P-4 and PW-1 in his evidence has clearly stated that though the accused is o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the evidence of PW-1, go to show that the legal notice sent to the accused has been tendered to him, however, since he has refused, it has to be taken that there is compliance of issuance of notice to the accused under Section 138 of N.I. Act. 16. Learned Amicus Curiae for the respondent also submitted that, assuming for a moment that the notice was not served upon him, but, still he had an opportunity to pay the cheque amount immediately after receipt of the summons from the Court or coming to know about the pendency of the criminal case filed against him, which also he has not done, as such, he cannot contend that he was not aware of the dishonour of the cheque. In her support, she relied upon the judgment of Hon'ble Apex Court C.C. Alavi Haji vs. Palapetty Muhammed and others, reported in MANU/SC/2263/2007. In the said case, the Hon'ble Apex Court with respect to service of notice under Section 138 of N.I. Act was pleased to refer to its previous judgment in D. Vinod Shivappa vs. Nanda Belliappa, reported in [ (2006) 6 SCC 456], and was pleased to observe in Paragraphs-15 and 16 as below: 15. As noticed above, the entire purpose of requiring a notice is to g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gislation. As observed in Bhaskarans case (supra), if the giving of notice in the context of Clause (b) of the proviso was the same as the receipt of notice a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act. With the above observation, the Hon'ble Apex Court was pleased to hold that since the notice in the said case was sent under Registered Post Acknowledgement Due to the correct address and was returned with an endorsement that the addressee was in abroad, it has to be held that there is a successful compliance of Section 138 of N.I. Act regarding issuance of notice to the accused. In the instant case also, as observed above, the notice has been sent to the correct address of the accused and since he has refused the same, the Registered Post Acknowledgement Due was returned to the sender and also since the accused did not come forward to make good the amount of the cheque immediately after he coming to know about the institution of the criminal case, I am of the view that the argument of the learned counsel for the petitioner that there is no servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by the accused to him. In that regard, except a suggestion to PW-1 in his cross-examination from the accused side that there was no loan transaction between them and that the complainant had misused the cheque said to have been given by the accused to him, no other corroborative evidence has been led or placed by the accused. The said suggestion denying the loan transaction made to PW-1 also has not been admitted by the said witness. Therefore, the entire defence of the accused about denial of the loan transaction has just confined to a mere oral denial made to PW-1. However, the same is not sufficient to rebut the presumption which has been formed in favour of the complainant under Section 139 of N.I. Act regarding the existence of legally enforceable debt. Since it is considering all these aspects, the trial Court has convicted the accused and the same was further confirmed by the Sessions Judge's Court, I do not find any illegality, impropriety or perversity in those judgments, warranting any interference at the hands of this Court. 19. The trial Court for the proven guilt of the accused for the offence punishable under Section 138 of N.I. Act, had sentenced the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X
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