TMI Blog2015 (9) TMI 1728X X X X Extracts X X X X X X X X Extracts X X X X ..... otices, the photo copies of which were marked as X series for identification. It is true that photocopies are inadmissible in evidence, unless admitted, but in the instant case there was no question of production of the originals as those were in the possession of the accused respondent. As he denied the receipt of the notice there was no question of issuance of notice on him to produce the originals. This court is satisfied that the cheques (Ext.-3 series) were issued in discharge of existing liability, that the cheques bounced for different reasons as per bank memos (not in dispute) and that the notices under Section 138B were duly received by the accused respondent. Thus the judgment of acquittal passed by the trial court is fit to be reversed. Hence the respondent Dolon Adhikari is found guilty in respect of the charge punishable under Section 138 of the N.I. Act. The cheque amount was Rs. 1,40,500/- and all those were issued in the year 2010/2011. Thus, more or less five years have passed in this legal battle. The appellant is to be duly compensated. Thus, considering every aspect the accused appellant is sentenced to suffer R.I. for ten days and also to pay compensation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the accused in respect of the three cheques but, unfortunately, original notices could not be produced before the learned trial court and only photo copies were produced and as such those were marked as X, X/1 and X/2 for identification. The returning memos were, however, marked Exbt. 2 series. A.D. cards were also placed before the learned trial court but there was no postal stamp on any of the A.D. cards. Those three cards were marked Exbt. 3 series. It is clear from the photo copies of the notices that those were posted to Dolan Adhikari, Beliaghata, Kolk-10, by speed post respectively vide postal receipt No. EW502206978IN, EW502207001IN and EW502206995 of such letters were posted from Kolkata G.P.O. on 26.11.2010. It may be noted that no original receipt was produced before the trial court issued by the postal department regarding the posting of such notices. 3. Learned Trial Court held that the appellant was not a professional money lender that the cheques were issued in discharge of existing liability and that all the cheques were dishonoured. The learned trial court acquit the accused on the ground of that there was no endorsement on the postal department on the A.D. ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce notice has been sent by registered post with acknowledgement in a correct address, it must be presumed that the service has been made effective. We do not find from the endorsement of the postal peon that the postal peon was at all examined . 7. In that decision the Apex Court also relied upon another judgment as reported in 2004 (8) SCC 774 (Raja Kumari v. P. Subbarama Naidu Anr.) wherein it observed, This Court reiterated the same principle and held that the statutory notice under Sections 138 and 142 of the Negotiable Instruments Act, 1881 sent to the correct address of the drawer but returning with the endorsement must be presumed to the be served to the drawer and the burden to show that the accused drawee had managed to get an incorrect postal endorsement letter on the complainant and affixed thereof have to be considered during trial on the background facts of the case . 8. Be it noted that all the decisions referred to above by the learned Advocate appearing on behalf of the appellant were regarding quashing of a proceeding and not in criminal appeal, i.e., after any order of acquittal was passed of any accused was convicted. 9. Regarding question No. 4 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he N.I. Act, 1881 and failure to comply with such demand notice is also essential ingredient to the offence. It was further observed by the learned Single Judge that legal factors cannot be ignored in any prosecution. In that case, before the learned Single Judge, it was not known what was the lawyer's letter which was sent to the accused nor it is known whether the letter was at all delivered to the accused and as such, the learned Single Judge concluded that there was no reasonable proof of service of Demand Notice on the accused. The learned Single Judge also acquitted the accused only on that ground. 12. The trial court held inter alia in favour of the appellants that the complainant was not a professional money lender that the accused respondent admitted that he issued the cheques and that the accused failed to prove that he had paid the amount mentioned in the cheques. The trial court though in the body of the judgment discussed that naturally three cheques were issued respectively for Rs. 15,500/-, Rs. 1,00,000/- and Rs. 25,000/-. Admittedly in the heading of the judgment there is no mention that C. Case No. 84 of 2011 and 85 of 2011 were being disposed of as per a co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instruction and it contains the signature of my advocate Dipta Bhanu Dutt whose signature I know is being marked as Exhibit-5 series. The said notices were given to the accused at the address of the accused under Section 138 of the Negotiable Instruments Act 1881 as amended up-to-date to bring to his knowledge about the dishonor of the cheques and requested to make payment of the said three dishonored cheques within 15 days from the receipt of the said notice. That the accused person receipts the notices on 29.11.2010 and acknowledge the same on A/D cards. The said three A/D cards returned to my advocate on 18.01.11 be marked as Exhibit-6 Series. 9. That in-spite of services of the said notices the accused person failed and neglected to pay the amount as demanded. The accused person has not even cared to reply to the said claimant. 17. The next question is whether the accused respondent in his cross-examination countered the issuance of notice issued by the Advocate of the complainant appellant. In cross-examination it was denied that the accused did not put any signature on the A/D card or that the signatures were manufactured. As regards the issuance of demand notice no q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f this court in Shibu Chakraborty (supra) cannot apply in this case. The complainant could have produced the original postal receipts showing posting of the speed post letters to the accused respondent to get the benefit of M/s. Indo Automobiles (supra) but, the non-production of those cannot clinch the issue in favour of the respondent. 21. Thus this court is satisfied that the cheques (Ext.-3 series) were issued in discharge of existing liability, that the cheques bounced for different reasons as per bank memos (not in dispute) and that the notices under Section 138B were duly received by the accused respondent. Thus the judgment of acquittal passed by the trial court is fit to be reversed and I do that. 22. Hence the respondent Dolon Adhikari is found guilty in respect of the charge punishable under Section 138 of the N.I. Act. The cheque amount was Rs. 1,40,500/- and all those were issued in the year 2010/2011. Thus, more or less five years have passed in this legal battle. The appellant is to be duly compensated. Thus, considering every aspect the accused appellant is sentenced to suffer R.I. for ten days and also to pay compensation amount under Section 357(3) of the Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
