TMI Blog2022 (6) TMI 535X X X X Extracts X X X X X X X X Extracts X X X X ..... t I have not issued any cheque. I do not know how they have got the cheque. May be with fraudulence and I don t have any liabilities to them. The opposite party did not challenge the issuance of such fraudulent cheque. No defence has been taken nor any documents placed challenging the impugned cheque. The proviso to Section 138 of the Act affords clear indication that giving notice in the context is not the same as receipt of notice. Giving is the process of which receipt is the accomplishment. The payee has to perform the former process by sending the notice to the drawer at his correct address - this Court has no hesitation to hold that in connection with complaint case, demand notice was duly served upon the accused. The order of acquittal passed in favour of the accused/respondent is liable to be set aside - appeal allowed. - C.R.A 714 of 2018 and C.R.A 715 of 2018 - - - Dated:- 10-6-2022 - HON BLE JUSTICE BIBEK CHAUDHURI For the appellant: Mr. Somopriyo Chowdhury, Adv., Mr. Kausik De, Adv., Ms. Mohini Majumdar, Adv., Mr. Raghav Munshi, Adv. For the Respondent: Mr. Sandipan Ganguly, Sr. Adv., Mr. Dipanjan Dutt, Adv., Mr. Arkadeb Bhattacharya, Adv. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notice upon the accused person on her two addresses were served or not. The Director, G.P.O replied on 4th May, 2016 that the envelopes containing demand notice were duly delivered upon the accused on 6th April, 2016. Since the accused failed and neglected to make payment of the amount involved in the cheque the complainant has filed the above numbered complaint. 6. Thus, in the above mentioned two appeals two numbers of cheques dated 15th December, 2015 and 15th March, 2016 were allegedly dishonoured and in spite of service of demand notice, amount involved in the cheque was not paid by the accused attracting the penal provision of Section 138 of the NI Act. 7. It is pertinent to mention at the outset that the complainant in both the cases is a partnership firm represented by them one Govind Singh Atwal, one of the partners of the said partnership firm. It is also not disputed that the respondents is the proprietor of Everest Business House. It is further ascertained from the evidence on record that the parties deal with the trading business of tea. 8. During trial the accused/respondent took the following defence:- (i) The complainant firm being an unregistered par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court held that the complaint by one of the partners cannot be faulted and when the complaint is filed by one of the partners of the firm, it suffers from no infirmity. In support of his contention that Section 69 of the Partnership Act is not a bar against filing of an application under Section 138 of the NI Act, Mr. Chowdhury refers to a three Judges Bench decision of the High Court of Andhra Pradesh in Dr. A.V Ramanaiah Anr. vs. M. Shekhar Ors. reported in 2007 SCC OnLine AP 1261. 12. The learned Advocate for the appellant argued that the learned Magistrate failed to distinguish between liability of a proprietorship firm and the liability of its proprietor. The proprietorship firm has no right to sue or to be sued in its own name but it is the proprietor who is vested with both the rights and liabilities on behalf of the proprietorship firm. The word proprietor and proprietorship have been defined in Black s Law Dictionary, 6th Edition as under: Proprietor : Owner of proprietorship. One has the legal right or exclusive title to property, business etc. In many instances it is synonymous with owner. Proprietorship : A business which is owned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o consider that the cheques were issued in discharge of existing liability of proprietorship firm. Under Section 139 read with Section 118 of the N.I Act. the sole and initial responsibility is on the accused to show that the cheque was not issued in discharge of any existing liability. Reliance has been placed by the ld. Advocate for the appellant in Rangappa vs. Sri Mohan decided in (2010) 11 SCC 441 . In Rangappa, the ratio decidendi of Krishna Janardhan Bhat vs Dattatraya G Hegde : (2008) 4 SCC 54 was considered. The Hon ble Supreme Court quoted paragraph 29-32 and 34 of Krishna Janardan Bhat. The said paragraphs are reproduced below: 29. Section 138 of the Act has three ingredients viz.: (i) that there is a legally enforceable debt; (ii) that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debt; and (iii) that the cheque so issued had been returned due to insufficiency of funds. 30. The proviso appended to the said section provides for compliance with legal requirements before a complaint petition can be acted upon by a court of law. Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no doubt that there is an initial presumption which favours the complainant. 17. Thus, Krishna Janardhan Bhat case was overruled by Rangappa case. As noted in the above reports, this is of course in the nature of a rebuttable presumption and it is open to the accused/opposite party to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. 18. Coming back to the facts in the present case, the opposite party did not raise a probable defence that there was no existing liability. However the appellant in its affidavit of evidence showed the transactions made in favour of the opposite party. The appellant provided an amount of Rs.75,00,000/- to the opposite party on the request of Sidharth Rai who is one of the partner of the appellant and also husband of the opposite party to run a business of tea purchase. Assurance was given to repay the amount in installment by 2016 and in the mean time would pay the profit from tea trading. The opposite party refunded an amount of Rs.13,00,000/- in 2013 and Rs.5,00,000/- in 2015. A total of Rs.18,00,000/- out of Rs.75,00,000/- has been paid and Rs.3,53,480/- as commission from profit has been pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to rebut the presumption available to the complainant under Section 139 of the NI Act. 23. It is contended by the learned Advocate for the respondent that the accused was not properly examined under Section 313 of the Cr.P.C and she was thereby prejudiced. I do not find any substance in such argument advanced by the learned Counsel on behalf of the respondent. The purpose of examination of the accused under Section 313 of the Cr.P.C is to ascertain the defence plea on the incriminating circumstances appearing against him/her in course of evidence on behalf of the prosecution/complainant. When it is found that the accused understood the questions properly and gave proper reply which was recorded by the trial court, trial of the case cannot be stated to be vitiated for improper examination of the accused under Section 313 of the Cr.P.C. 24. It appears from the registered envelope containing demand notice that the demand notice was sent in three addresses, viz, in the residential address of the accused at Sunflower Garden, Flat No.9F, Topsia and in the address of her business place at 64 Nehru Colony, Netaji Subhas Chandra Bose Road, P.S Regent Park, Kol-40 and also at 46, Ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vs Sankaran Vaidhyan Balan Anr. reported in (1999) 7 SCC 510., wherein it has been held in Para 19: 19. In Black s Law Dictionary giving of notice is distinguished from receiving of the notice : A person notifies or gives notice to another by taking such steps as may be reasonably required to inform the other in the ordinary course, whether or not such other actually comes to know of it. A person receives a notice when it is duly delivered to him or at the place of his business. 20. If a strict interpretation is given that the drawer should have actually received the notice for the period of 15 days to start running no matter that the payee sent the notice at the correct address, a trickster cheque drawer would get the premium to avoid receiving the notice by different strategies and he could escape from the legal consequences of Section 138 of the Act. It must be borne in mind that the court should not adopt an interpretation which helps a dishonest evader and clips an honest payee as that would defeat the very legislative measure. 29. It has been pointed out by the Ld. Advocate for the opposite party that the address mentioned in appeal is different fro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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