Kishori Lal alias Kishor Chand vs Karam Singh

Dev Darshan Sud, J.—The Petitioner challenges his conviction by the two Courts below convicting and sentencing him u/s 138 of the Negotiable Instruments Act, 1881, (hereinafter referred to as the ''Act'').

The case of the complainant was that both the parties known to each other. The Petitioner had borrowed a sum of Rs. 1,70,000/- from the complainant on30.10.2006 for running his business on the promise that he would repay the same within ten days. He had accordingly issued a cheque bearing No. 936345, dated 12.11.2006 payable at Punjab National Bank, Jaure Amb, Tehsil Barsar, District Hamirpur. When this cheque Ex. C-1 was presented by the complainant for encashment to his banker, it was returned by Memo Ex. C-2 with there marks "Operation Stopped". The Petitioner herein, tendered in evidence Ex. D-1, a certificate issued by his banker stating that the account had been closed as his business was in default. It reads:

B.O. JAURE AMB D. No. 2200 25.03.09

TO WHOM IT MAY CONCERN

It is here by certified that Sh. Kishori Chand S/o Sh. Piar Chand, R/o Vill. Telkar, has raised a PMRY Loan at dew on 31.12.02 for Rs. One Lac Rs. 1,00,000/- in the name of M/s Kapoor Soap Factory.

-Applicant defaulted in repayment.

-A Cheque Book No. 836341 to 936360 was issued on 10/5/05 in C/C A/C No. 100.

-Applicant closed his Business, Defaulted in Repayment & finally closed his A/c in June, 2007.

Sd/-

For Punjab National Bank

Manager, Jaure Amb, H.P.

The evidence as recorded, consisted the complainant, PW-1 Gurbachan Singh, Manager, Punjab National Bank, Jaure Amb, who has stated that cheque Ex. C-1 was received by their bank for encashment from State Bank of Patiala, Barsar, but was returned as the Respondent had stopped operation of the account. This cheque was accordingly returned to the State Bank of Patiala vide Ex. C-2 with the remarks that operation had been stopped. The forwarding letter of the State Bank of Patiala is Ex. CY. In his cross-examination he admitted that the accused had raised loan from their bank for running soap factory and due to non-payment of loan the bank had stopped the operation of his account. Vishwajeet Marwah CW-3, an employee of the State Bank of Patiala, Barsar, had stated that this cheque was presented for encashment but was returned. The accused examined Gurbachan Singh, Manager as DW-1 who stated that the bank operation had been stopped by the accused.

In revision, the Learned Sessions Judge, has affirmed the findings of the Learned trial Court. I may at this juncture note the submissions made before the Learned appellate Court. The case of the Petitioner herein was summed up by the Learned Judge in the following terms:

The only defence taken by the accused/Appellant in this case, as per cross-examination of complainant, Karan Singh, is that the complainant had stolen away the cheque book of the accused/Appellant from his vehicle and thereafter, he had forged signatures of the accused/Appellant on the cheque, Ext. C1. However, such defence has not been taken in the statement u/s 313 Code of Criminal Procedure nor the accused/Appellant has examined.

There is no any other submission mad eat the Bar on behalf of the accused/Appellant.

The Petitioner now seeks to challenge the judgment on a number of grounds. The first ground urged is that the Petitioner has not signed the cheque. He submits that this Court can itself examine the signatures to arrive at this conclusion for which no expertise is required but the perse examination would itself reveal this fact. Learned Counsel has drawn my attention to ground (ii) before the Learned appellate Court urging that no cheque has been issued to the complainant and it has not been signed by him. The cheque book has been stolen and thus the complainant himself had forged the signatures on the cheque. This submission requires to be rejected. In addition to what the Learned Sessions Judge notes, I find it very strange that in case the cheque book was stolen and the signatures were forged by the complainant, surely the accused would not sit without taking any action. I find; (a) no complaint has been lodged with the bank neither any notice given to the effect that a cheque book has been stolen by the known/un-known person and any cheques issued from this cheque book should not be honoured by the bank; (b) no police complaint/FIR has been lodged by the Petitioner herein; (c) no civil casehas been instituted by the claimant on the ground that the amount claimed is on the basis of a forged negotiable instrument. All these acts/actions should have been taken by the Petitioner herein immediately when the cheque book was lost and in any event contemporaneously with the receipt of Ex. D-1 which is a notice by the bank closing his bank account in which event he would have informed that no cheques are to be honoured as the cheque book was stolen. When the notice was received from the Court in the complaint, it was also the right/fortune movement when such action should have been initiated. Most of all, he produces no evidence nor does he state anything in support of this contention nor does he state so in his statement u/s 313 Code of Criminal Procedure. The plea raised before the Learned Sessions Judge has rightly been rejected. I do not find any substance in the ground urged before this Court on the same set of facts which have not been proved on the record. This submission, therefore, requires to be rejected.

Learned Counsel then urges that Ex. C-3, the memo returning the cheque, does not show insufficiency of funds. Only operation of the account has been stopped. All that I need say on this score is that this was an act in the deliberation and contemplation of the Petitioner and in case he had closed the account, there was no occasion for him to have issued the cheque. Learned Counsel submits that notice issued, Ex. C-3, is not in accordance with the mandatory provisions of Section 138 of the Act which conditions are a sine qua non for initiation of criminal proceedings.

I find from the notice envelop Ex. C-5 and acknowledgement form Ex. C-6 that it has been addressed to the Petitioner at the same address on which he was served in the appeal, the endorsement on the notice is that the Petitioner is not available at the given address. In V. Raja Kumari Vs. P. Subbarama Naidu and Another, the Supreme Court holds:

In Madhu v. Omega Pipes Ltd. 1994 (1) ALT (Cri.) 603 (Ker) the scope and ambit of Section 138 Clauses (b) and (c) of the Act were noted by the Kerala High Court and Justice K.T. Thomas (as His Lordship was then) observed as follows:

In Clause (c) of the proviso the drawer of the cheque is given fifteen days from the date ''of receipt of the said notice'' for making payment. This 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 in his correct address. If receipt or even tender of notice is indispensable for giving the notice in the context envisaged in Clause (b) an evader would successfully keep the postal article at bay at least till the period of fifteen days expires. Law shall not help the wrongdoer to take advantage of his tactics. Hence the realistic interpretation for the expression'' giving notice'' in the present context is that, if the payee has dispatched notice in the correct address of the drawer reasonably ahead of the expiry of fifteen days, it can be regarded that he made the demand by giving notice within the statutory period. Any other interpretation is likely to frustrate the purpose for providing such a notice.

Burden is on the complainant to show that the accused has managed to get an incorrect postal endorsement made. What is the effect of it has to be considered during trial, as the statutory scheme unmistakably shows that the burden is on the complainant to show the service of notice. Therefore, where material is brought to show that there was false endorsement about the non-availability of noticee, the inference that is to be drawn has to be judged on the background facts of each case. (p-112) 8.

In C.C. Alavi Haji Vs. Palapetty Muhammed and Another, holds:

Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that inspite of the return of the notice un served, it is deemed to have been serve dor that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement "refused" or "not available in the house" or "house locked" or "shop closed" or "addressee not in station", due service has to be presumed. (Vide Jagdish Singh Vs. Natthu Singh, ; State of M.P. Vs. Hiralal and Others, and V. Raja Kumari Vs. P. Subbarama Naidu and Another, It is, therefore, manifest that in view of the presumption available u/s 27 of the Act, it is not necessary to aver in the complaint u/s 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice un served.

It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post can within 15 days of receipt of summons from the court in respect of the complaint u/s 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint u/s 138 of the Act, cannot obviously contend that there was no proper service of notice as required u/s 138, by ignoring statutory presumption to the contrary u/s 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran case, if the "giving of notice" in the context of Clause (b) of the proviso was the same as the "receipt of notice" atrickster 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. (pp-564-565)

(Emphasis supplied)

Adverting to Ex. D-1 which has been urged in defence, it is only a certificate issued by the bank saying that the accused has closed his account. If that be so there is no explanation as to why he had issued the cheque, subject matter of the petition. Rather the unsubstantiated story was one of the cheque book having been stolen. I, therefore, find no merit sin this revision petition which is dismissed.

On the question of sentencing, looking to the facts and circumstances of the case I direct that incase the accused-Petitioner herein deposits a sum of Rs. 2,10,000/- within a period of six months from today with the Learned trial Court which amount, on deposit, shall be disbursed to the complainant, the sentence of imprisonment is set aside. In case of non-deposit of such money, the Petitioner shall be taken into custody and sentence of imprisonment imposed by the Learned trial Court shall revive. A direction is issued accordingly that in case of default the Learned trial Court shall duly and faithfully execute the sentence of imprisonment.