B.V. Thammaiah vs N. Shankar, Proprietor Shankar Cycle Works, Om Shakthi Provision Store

A.S. Pachhapure, J.—The appellant has challenged the judgment and order of acquittal of the respondent for the offence punishable u/s 138 of the Negotiable Instruments Act (hereinafter called as the Act).

The facts relevant for the purpose of this appeal are as under:

The appellant and the respondent are known to each other since many years and in the circumstances, the respondent approached the appellant and borrowed a sum of Rs. 25.000/ in the month of October 2000. The appellant paid the amount and the respondent assured to return the same within two months with interest. He also issued a cheque dated 04-01-2001 for Rs. 25.000/- in the name of the appellant drawn on Bank of India. Yeshwanthpur Branch, for the discharge of the loan liability.

The appellant presented the cheque and it returned with an endorsement as account closed. Later, the complainant issued the notice and as the said notice was not complied, the appellant filed a complaint before the Trial Court to take action against the accused for the offence u/s 138 of the Act. The respondent appeared and his plea was recorded and thereafter the appellant was examined as PW.1 and in his evidence, the documents Exs. P. 1 to P. 8 were marked. The statement, of the accused was recorded u/s 313 Cr.P.C. He has taken the defence of total denial. He is examined as DW. 1 and the documents Exs. D. 1 to D. 3 have been marked. The Trial Court on appreciation of the material on record and after hearing the Counsel acquitted the respondent for the offence u/s 138 of the Act. Aggrieved by this order, this appeal has been preferred.

I have heard the learned Counsel for the parties. The point that arise for my consideration is:

Whether the order of acquittal of respondent for the charge u/s 138 of the Act is illegal and perverse?

It is the contention of the learned Counsel for the appellant that there is ample material to prove that the cheque was issued by the respondent and the said cheque was dishonoured on the ground that the account was closed and the demand notice issued has not been replied and in the circumstances, he submits that the presumption could be raised u/s 139 of the Act. He submits that the respondent has not produced any material to rebut the said presumption and in the circumstances, the acquittal is illegal and perverse.

Per contra, the learned Counsel for the respondent has supported the judgment and order of the Trial Court.

I have scrutinized the material placed on record in addition to the documents admitted in the evidence. At the first instance, so far as the cheque issued is concerned, though the respondent admits that the cheque leaf belongs to his account, in the cross examination of PW.1 he has denied his signature. Furthermore, the complainant when the signature was denied was bound to examine either the Manager of the Bank or the hand writing expert to prove the signature. It is no doubt true that when a negotiable instrument is issued, there is a presumption that the said negotiable instrument has been issued towards the discharge of the debt or liability. But this presumption arises only in case if the appellant is in a position to discharge the initial burden. For the said purpose, he has to produce the cheque prove that the signature is of the accused and when the signature is disputed, atleast examine the Manager or the hand writing expert and if this is done, the presumption u/s 139 could be raised. It is only in such circumstances that the onus shifts upon the accused to rebut the said presumption. No reasons have been assigned for non examination of Bank Manager or the hand writing expert. So, it is on this ground that the Trial Court did not accept the evidence of the complainant to grant the order of conviction.

Secondly, the respondent disputes the service of the notice. So far as this, service is concerned, the appellant has produced Ex. P. 4 the copy of the notice. Ex. P. 5 the postal receipt, Ex. P. 6 the receipt of certificate of posting and Ex. P. 7 the envelope which has been returned with an endorsement of the post officials that there is insufficient address. So also, there is a seal that the address is not known. Though the Counsel submits that the address in the complaint, the notice, the postal certificate, the envelope and also this appeal memo is the same and as the respondent has been served at the same address through the Court, while issuing the process in the Trial Court and notice in this appeal, he submits that a presumption arises with regard to the service of notice. On this aspect of the matter, the Counsel for the respondent has placed reliance or. the decision of the Andhra Pradesh High Court reported in Katta Annaji Rao Vs. Nemani Krishnaraju Sekhar and The State of A.P., wherein it has been held that when the complainant is claiming that the notice sent was by Registered Post and also through certificate of posting and the notice sent by registered post was returned unserved with endorsement "addressee left", there was no evidence to show that notice sent by certificate of posting was infact served on accused. In the circumstances, it was held that the accused is entitled to the benefit of doubt. He also relied upon the decision of the Apex Court reported in Sridhar M.A. Vs. Metalloy N. Steel Corporation, wherein, the Apex Court considering the provisions of Section 138 of the Act held that notice should not have been deemed to have been served as a matter of course, where the appellant alleged to have not received the notice, held on facts that the appellant is entitled to the benefit of doubt.

It is no doubt true that the appellant has issued the notice under certificate of posting and also through registered post and in fact, in the complaint and also in the appeal Memo, he has given the same address. As far as the notice through the Trial Court, and this Court are concerned, they are sent through the Police. It may be that the Police make a search of the person to whom the notice has been issued by making efforts though the address is insufficient and in such circumstances, notice could have been served. But this is not a circumstance to raise presumption that the notice which was issued by the appellant came to be served upon the respondent.

The respondent has been examined as DW. 1 and in his evidence, he has produced three documents. He states that he has opened a cycle shop in his house and so far as the proof of his address is concerned, he has produced Ex. D. 1 the receipt regarding gas connection wherein the address of the respondent is shown he has produced the ration card copy and the tax receipt Ex. D. 2 to show the payment of tax of his house and also the receipt regarding the payment of phone bill to BSNL wherein the address has been shown which is different from the one mentioned in the complaint and also the appeal. Though the evidence of the respondent is not that much satisfactory solely because that the documents Exs. D. 1 to D. 3 are of the later period than the date of the issuance of the cheque, but it is the burden of the complainant to prove the service of the notice and as he has failed to do so, the service cannot be held to be sufficient. So taking into consideration, the circumstances stated above, the Trial Court on appreciation of the material on record has granted an acquittal.

In an appeal against acquittal, the Appellate Court will be slow in interfering with the orders of acquittal and even if the second view is possible, the view accepted by the Trial Court cannot be disturbed. In that view of the matter and for the reasons stated above, as there are no merits in this appeal, I answer the point in negative and proceed to pass the following:

ORDER

The appeal is dismissed.