Mahadev Ghosh vs State of Jharkhand And Ors

Heard Mr. Jitendra S. Singh, Advocate along with Mr. Mrityunjay Choudhary, Advocate appearing on behalf of the petitioner.

Heard Mr. Rohit Sinha, Advocate assisted by Mr. Suraj Kishore, Advocate appearing on behalf of the opposite party no. 2.

Heard Mr. Prabhu Dayal Agarwal, counsel appearing on behalf of the opposite party -State of Jharkhand.

Counsel for the petitioner submits that although there are concurrent findings against the petitioner, but the impugned judgements call for interference on account of apparent illegality and perversity based on the provisions of Section 138 of the Negotiable Instruments Act, 1881.

The counsel for the petitioner, while advancing his arguments, has submitted that two cheques, each of Rs. 70,000/- dated 10.01.2005 and 20.01.2005 were issued by the accused and was presented on the same date and on the same day, it was communicated that the cheques stood dis-honored on account of non-availability of fund.

The counsel submits that as per the case of the complainant, on 21.01.2005 notices were issued under Section 138 of the Negotiable Instrument Act, 1881 under registered cover and were returned with an endorsement "unclaimed" on 25.01.2005 and the returned envelop was received by the complainant on 01.02.2005. He further submits that the learned trial court took the date 25.01.2005 as the date of refusal and in this backdrop, he submits that even if 25.01.2005 is taken as the date of service of notice, case has been filed on 15.03.2005, which was beyond the period of limitation. While giving the calculation, he submits that the fifteen days period from receipt of notice would have expired on 09.02.2005; 30 days period for filing the complaint case thereafter would have expired on 11.03.2005 and the complaint case was filed on 15.03.2005. Accordingly, he submits that complaint case having been filed beyond the period of 45 days from the date of receipt of notice, the case under Section 138 of the Negotiable Instruments Act, 1881 was not maintainable.

The counsel for the petitioner submits that this aspect of the matter has not been properly appreciated by the learned courts below and accordingly impugned judgments are perverse and are fit to be set aside in revisional jurisdiction.

Counsel for the opposite party no. 2, on the other hand, submits that in view of the provisions of Section 27 of General Clauses Act and Section 114 of Indian Evidence Act , there is a presumption regarding service of notice after 30 days from the date of its issuance and accordingly, in view of the judgment passed by Hon'ble Supreme Court reported in (2007) 6 SCC 555 (C.C. Alavi Haji Vs. Palapetty Muhammed and Ors.) , the impugned judgments have been rightly passed. There being no perversity/illegality, the revision petition be rejected.

The counsel for the opposite party no. 2 further submits in case of refusal of notice also, the provisions of Section 27 of the General Clauses Act would apply. The counsel, while referring to the judgments passed by the learned courts below, has submitted that as per the calculation made by the complainant, the notice was sent on 21.01.2005 and the fact about refusal came to the notice of the complainant on 01.02.2005 and accordingly, the calculation has been done from 01.02.2005. He submits that the limitation would commence from 01.02.2005 and not from 25.01.2005 and otherwise also there is no such recording of fact by the learned courts below that the date of endorsement showing refusal of envelope was dated 25.01.2005 .He submits that considering the scope of the revisional jurisdiction , the impugned judgements do not call for any interference.

After hearing counsel for the parties and after considering the material available on record, this court finds that so far as contention of the petitioner that the envelope containing the notice was served upon the accused on 25.01.2005 which returned with endorsement of "unclaimed" by the post man and was received back by the complainant on 01.02.2005 is concerned, this court finds that there is no such exhibit and there is no finding by the learned courts below that the endorsement regarding return of envelope as 'unclaimed' was made on 25.01.2005. Accordingly, at this stage, this court is not inclined , in exercise of power under revisional jurisdiction to re-appreciated the evidence and to examine as to whether the specific date of endorsement, as claimed by the petitioner is 25.01.2005 or not and whether there was any endorsement of the post office dated 25.01.2005 ,showing the return of envelope by the accused. Accordingly, contention of the petitioner that the period of limitation is required to be counted from 25.01.2005 cannot be appreciated and accepted.

In aforesaid view of the matter, the contention of the petitioner that the case was itself barred by limitation, is rejected. The learned trial court has held the petitioner guilty of the offence after due consideration of all the points including the point of limitation and the judgment has been affirmed by the learned lower appellate court by a well-reasoned judgement. There is no perversity or illegality in the impugned judgments calling for any interference by this court in revisional jurisdiction.

At this stage, counsel for the petitioner while advancing his arguments on the point of sentence submits that the criminal proceeding is of the year 2005 and the petitioner has faced the case for around 14 years. He submits that the petitioner has remained in custody for about two months (from 08.07.2008 to 04.09.2008) and he submits that the sentence may be modified in such a manner such that some fine could be imposed as per the provisions of Section 138 of the Negotiable Instruments Act, 1881. He further submits that the learned court below has given the punishment of seven months and compensation under Section 357(3) of Cr. P.C. amounting to Rs. 1,45,000/-. The counsel submits that the petitioner is ready to give 6% interest on the cheque amount which comes to around 1,17,600/-, so that the complainant may be adequately compensated. He submits that in view of the aforesaid the sentence be modified.

Counsel appearing on behalf of opposite party no. 2 on the point of sentence has submitted that the learned court below has only granted punishment of simple imprisonment of 7 months but no amount in connection with the cheque has been awarded. He submits that the learned court below had exercised power under Section 357(3) of the Cr. P.C. and assessed compensation at Rs. 1,45,000/-. He further submits that the learned court below ought to have imposed fine under the provisions of Negotiable Instruments Act, 1881 over and above the compensation amount of Rs. 1,45,000/-.

Considering the aforesaid arguments on the point of sentence, this court finds that the petitioner has suffered the rigours of litigation for 14 years and remained in custody for about 2 months (i.e. from 08.07.2008 to 04.09.2008), this court is inclined to modify the sentence in the following manner.

(a) The sentence would be limited to the period of custody already undergone by the petitioner.

(b) Fine of Rs. 1,17,600/- will be payable by the petitioner to the complainant latest by 31.08.2019.

(c) Compensation of Rs. 1,45,000/- under Section 357(3) of Cr. P.C. is also payable to the complainant latest by 31.08.2019, if not already paid.

(d) The entire amount to be deposited before learned court below by way of demand draft in the name of the complainant.

If the aforesaid amount is not deposited within the aforesaid time frame, the bail bond of the petitioner will be immediately cancelled by the learned court below and the petitioner would serve the remaining sentence/punishment as per the impugned judgments.

This revision application is hereby disposed of with aforesaid modification of sentence.