TMI Blog2014 (6) TMI 1074X X X X Extracts X X X X X X X X Extracts X X X X ..... ies to find the addressee, have proved unsuccessful. There is a deemed service. Here, the question arises is what is the date of deemed service, is it 19.09.2005 or after end of the seven days of waiting for return. In the above Rule 74 of the Postal Rules what is required is to deposit for seven days and return thereafter to the sender. That is different from the deemed service for purpose of considering 15 days time under Section 138 N.I. Act. As per the expression in C.C. Alavi Haji's case [ 2007 (5) TMI 335 - SUPREME COURT] there is a deemed service from continuous absence. For the purpose of deemed service, it is sufficient to say the date of intimation or the postman went to the address for delivery or absence of or unclaimed or refused. Here, for all practical purposes there is a registered letter posted duly to the correct address for endorsement by the sender. The postal authorities are agents of the sendee to deliver and if that is the case, irrespective of seven days waiting, otherwise required from the internal guidelines and instructions, leave about its statutory force to bind the parties, who sent the notice to whom, the first intimation was dated 19.09.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n cognizance and the accused, who appeared before the Court pursuant to the summons and after supply of case copies under Section 207 of the Code of Criminal Procedure (for brevity, Cr.P.C. ), when questioned on substance of accusation under Section 251 Cr.P.C., he pleaded not guilty. 4. During the course of trial, on behalf of the complainant, complainant himself was examined as PW.1 and got marked Exs. P.1 to P.8, which include Ex. P.1 promissory note, Ex. P.2 cheque (supra), Ex. P.3 pay slip, Exs. P.4 and P.5 cheque return memos, Ex. P.6 office copy of legal notice, dated 26.09.2005, Exs. P.7 and P.8 returned postal covers, dated 04.10.2005. On behalf of the accused, DWs.1 to 3 were examined and got marked Exs. D.1 to 3 including served copy of plaint in O.S. No. 74 of 2006 on the file of the Senior Civil Judge, Ongole, Ex. D.2 writing of DW.2 in Court and Ex. D.3 pass book. 5. After completion of the evidence on the side of the complainant, the accused was examined under Section 313 Cr.P.C, and he denied the incriminating material levelled against him. 6. Apart from other merits, the trial Court held that the complaint is barred by limitation as it was not filed withi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anking Public Financial Institutions and Negotiable instruments Laws (Amendment) Act, 1981 (66 of 1988) which came into force w.e.f. 01-04-1989 and the N.I. Act was further amended by Act, 2002 (55 of 2002) which came into force w.e.f. 06-02-2003 incorporating new sections 143 to 147 in this Chapter XVII and further some of the existing provisions not only of the Chapter XVII, but also of other Chapters amended to overcome the defects and drawbacks in dealing with the matters relating to dishonour of cheques. 10-(B). The object and intention of these penal provisions of Chapter XVII (Sections 138-147), in particular, Sections 138 139 (besides civil remedy), are to prevent issuing of cheques in playful manner or with dishonest intention or with no mind to honour or without sufficient funds in the account maintained by the drawer in Bank and induce the Payee/Holder or Holder in due course to act upon it. The remedy available in a Civil Court is a long drawn matter and an unscrupulous drawer normally takes various pleas to defeat the genuine claim of the payee. Since a cheque that is dishonoured may cause uncountable loss, injury or inconvenience to the Payee due to the latter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is irrelevant. It is a strict liability incorporated in public interest. 10-(F). Availability of alternative remedy is no bar to the prosecution 10-(G). In the words-where any cheque, the word any suggests that for whatever reason if a cheque is drawn on an account maintained by him with a Banker in favour of another person for the discharge of any debt or other liability, the liability cannot be avoided in the event of the cheque stands returned by the Banker unpaid. 10-(H). In Suman Sethi v. Ajay K. Churiwal and Another [2000] 2 SCC 380, it was held of the legislative intent as is evident from Section 138 of the Act that, if for the dishonoured cheque demand is not met within 15 days of the receipt of the notice, the drawer is liable for conviction. If the cheque amount is paid within above period or before the complaint is filed, the legal liability under Section 138 ceases to be operative and for the recovery of other demands such as compensation, costs, interest etc. separate proceedings would lie. If in a notice any other sum is indicated in addition to the amount covered by the cheque that does not invalidate the notice. 11-A. In K.N. Beena v. Muniyappan Anoth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 118 clauses (a) to (g) of the Act and for the dishonour of cheque relating to criminal liability under 139 and apparently a legal fiction though strictly not as per the Explanation to Section 138-of the Act, for the purpose of this section, debt or other liability means a legally enforceable debt or other liability. Section 118: Presumptions as to negotiable instruments - Until the contrary is proved, the following presumptions shall be made: Clause (a) of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration. (b) to (g)- Section 139: Presumption in favour of holder - It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability. Presumptions both under Sections 118(a) and 139 of the Act are rebuttable in nature. What would be the effect of the expressions 'May Presume', 'Shall Presume' and 'Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere the factual basis for raising the presumption has been established since introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused, as a presumption of law distinguished from a presumption of fact as part of rules of evidence and no way in conflict with presumption of innocence and the proof by prosecution against the accused beyond reasonable doubt, but for saying to rebut the accused can discharge the burden showing reasonable probability of non-existence of the presumption of fact and to that proposition, the earlier expression in Bharat Barrel Drum Manufacturing Company v. Amin Chand Payrelal AIR 1999 SC 1008 para-12 showing the burden on the accused is to bring on record by preponderance of probability either direct evidence or by referring to circumstances upon which he relies, rather than bare denial of the passing of the consideration; apparently that does not appear to be of any defence, to get the benefit in discharge of the onus against, also held referring the M.M.T.C. Ltd. and another v. Medchl Chemicals Pharma (P) LTD AIR 2002 SC 182 that where the accused able to show justification of stop pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to be considered for deduction while enforcing the amount covered by the dishonoured cheque for its consequences, the burden is on the accused as per settled law to prove said discharge or adjustment. In this regard, in M/s. Thekkan and Company v. M. Anitha 2004 Crl.L.J. 58, it was held by the Kerala High Court that nothing precludes the Court under Section 138 of the Act for taking into account prior payments made before the presentation of the cheque or before receipt of notice in deciding whether the amount due under the cheque has been fully paid, if not for continuing the prosecution. In another expression of same High Court in R. Gopikuttan Pillai v. Sankara Narayanan Nair 2004 (1) BC 34 also it was held that accused Is bound to prove payment of entire amount within 15 days of receipt of notice and any part payment made before or after notice cannot absolve liability from the criminal prosecution under Section 138 of N.I. Act and thereby the trial Court went wrong in acquitting the accused for part payment made and not of the entire due under the cheque. 12. From the above legal propositions, coming to the factual matrix, it is important to note that Rule 74 of the Posta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the above Rule 74 of the Postal Rules what is required is to deposit for seven days and return thereafter to the sender. That is different from the deemed service for purpose of considering 15 days time under Section 138 N.I. Act. 16. Learned counsel for the appellant placed reliance upon an expression of Kerala High Court in Gopalakrishnan Lekshmanan v. Noor-jahan Abdul Azeez and Another 2012 CRI.L.J.93. It has to be understood that the date of knowledge of receipt of said notice as date of service. In fact that is not the law from the settled expressions particularly of the Three Judges Bench expression in C.C. Alavi Haji (supra). The learned counsel for the respondent/accused placed reliance upon a judgment of the Delhi High Court in HDFC Bank Limited v. Amit Kumar Singh (Crl.R.P. No. 296 of 2009), wherein it is stated that if the cover sent by registered post was not received back, it is claimed that the notice was duly served and on the dispute as to date of service for accrual of cause of action for payment within 15 days from there and if not paid only to file the complaint within one month. The receipt of notice is an essential condition and Section 138 N.I. Act speaks ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a wrong endorsement is manipulated by the addressee. In such a case if the facts are proved, it may amount to refusal of the notice. 18. At para No. 12 it was observed that complainant stated notice returned due to non-receipt and no where stated accused had deliberately avoided and no witness examined like a postman to prove the fact and held that complainant could not prove deemed service. 19. In fact, this decision is also not an authority as to seven days waiting required or not. So far as the present facts are concerned, as per the expression in C.C. Alavi Haji's case (supra) there is a deemed service from continuous absence. For the purpose of deemed service, it is sufficient to say the date of intimation or the postman went to the address for delivery or absence of or unclaimed or refused. Here, for all practical purposes there is a registered letter posted duly to the correct address for endorsement by the sender. The postal authorities are agents of the sendee to deliver and if that is the case, irrespective of seven days waiting, otherwise required from the internal guidelines and instructions, leave about its statutory force to bind the parties, who sent the n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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