Murshid Alam vs The State of Jharkhand and Another

H.C. Mishra, J.—Heard learned counsel for both the sides and perused the record. This appeal is directed against the judgment of acquittal dated 18.2.2009 passed by Shri Sunil Kumar Singh, Additional Sessions Judge, F.T.C., 1st, Dhanbad, in Criminal Appeal No. 147/08, whereby in the appeal filed by the respondent accused Javed Alam Khan, against the judgment of conviction and order of sentence dated 26.5.2008 passed by the Court of Shri Santosh Kumar, Judicial Magistrate, 1st Class, Dhanbad in C.P. Case No. 1686/05/Tr. No. 1055/2008, u/s 138 of the Negotiable Instruments Act (hereinafter referred to as ''the N.I. Act''), the said judgment of conviction and order of sentence was set aside by the Appellate Court on the ground that the notice of demand was not given to the accused within 30 days of the knowledge of the dishonour of the cheques.

The complainant''s case in brief is that the complainant is a raw leather businessman, supplying raw leather to various customers. On 10.2.2005 the accused approached the complainant for supply of raw leather and accordingly, raw leather worth several lakhs of rupees were supplied to the accused. The accused issued two cheques of Rs. 49,000/- each, bearing No. 517185 dated 15.4.2005 and No. 768130 dated 16.4.2005, for a total amount of Rs. 98,000/- in favour of complainant drawn on ABN AMRO Bank, Kolkata. The said cheques were deposited in the Bank which were dishonoured for insufficient fund. The complainant requested the accused to make the payment on several occasions and ultimately the complainant issued legal notice of demand to the accused, but when the said payment was not made, the complaint was filed in the Court below.

In course of trial, evidence was adduced only on behalf of the complainant. No evidence was adduced on behalf of the accused in defence. The evidence adduced in the Court below need not be elaborately detailed in the present case, because the only ground on which the accused has been acquitted, is that the legal notice for demand was not given to the complainant within the statutory period of 30 days of the dishonour of the cheques.

In this connection it may be pointed out that the cheques in question were proved by the complainant which were marked as Exhibits-1 and 1/1. Accordingly there are two Return Memos issued by the ABN AMRO Bank, one being dated 31.8.2005 and the other being dated 3.9.2005 and both of them were addressed to the State Bank of India, wherein the cheques were deposited by the complainant, showing the dishonour of the cheques. The Bank Return Memos were marked Exhibits-2 and 2/1. The complainant has also proved Exhibit-3, which is the legal notice of demand, wherein in paragraph No. 4 the complainant has stated as follows:--

That, you succeeded in getting the goods delivered and at the same time got the cheques dishonoured. The knowledge dishonoured of cheque was received by my client on 9.9.2005 and 12.9.2005 respectively. (Though actually received by my client on 18.9.2005).

Exhibit-4, is the postal receipt of sending the legal notice by registered post, which shows that the notice was actually sent in the month of November, 2005. Though the date of the same has become very faint, but the complainant, who was examined in the Trial Court as C.W.-3, has clearly stated in his evidence that the said notice of demand was sent to the accused through registered post vide registered slip No. 229, dated 7.11.05 which, on his identification was marked as Exhibit-4.

It may be stated that upon adjudication of the case, the Trial Court by judgment dated 26.5.2008 passed in C.P. Case No. 1686/05/Tr. No. 1055/2008 covicted and sentence the respondent accused for the offence u/s 138 of the N.I. Act. The said judgment was challenged by the respondent accused in appeal which was ultimately heard and allowed by the Appellate Court in Criminal Appeal No. 147 of 2008, setting aside the judgment of the Trial Court and the accused was acquitted of the offence u/s 138 of the N.I. Act, on the sole ground that the legal notice was not sent to the accused within the statutory period of 30 days.

Learned counsel for the appellant complainant tried to convince this Court that in Exhibit-3, which is the legal notice sent to the accused, it has come that the knowledge of the dishonour of the cheques was received by the complainant on 9.9.2005 and 12.9.2005, but they were actually received on 18.9.2005 and the notice of demand was given to the complainant within the statutory period of 30 days, on 4.10.2005, which is the date of legal notice, as is apparent from Exhibit-3. Learned counsel, accordingly, submitted that the impugned judgment passed by the learned Appellate Court is absolutely illegal and is fit to be set aside.

Learned counsel for the respondent-accused on the other hand, submitted that the postal receipt which has been proved by the complainant himself as Exhibit-4, clearly shows that the notice was actually sent to the complainant on 7.11.2005 and even the complainant has clearly stated in his evidence as PW-3, that the said notice was posted on 7.11.2005. Learned counsel accordingly submitted that even if the date of knowledge is taken as 18.9.2005, as is given in the legal notice (Exhibit-3), the date of notice exceeds 30 days and as such no offence can be made out against the accused and there is no illegality in the impugned judgment passed by the Appellate Court.

Learned counsel for the respondent accused has placed reliance on a decision of the Hon''ble Supreme Court of India in the case of M/s Rahul Builders vs. M/s Arihant Fertilizers & Chemical & Anr., reported in 2007(7) SC 522 (: 2008(1) JLJR (SC)116), wherein it has been laid down as follows:--

10....Unless a notice is served in conformity with Proviso (b) appended to Section 138 of the Act, the complaint petition would not be maintainable. The Parliament while enacting the said provision consciously imposed certain conditions. One of the conditions was service of a notice making demand of the payment of the amount of cheque as is evident from the use of the phraseology ''payment of the said amount of money". Such a notice has to be issued within a period of 30 days from the date of receipt of information from the bank in regard to the return of the cheque as unpaid. The statute envisages application of the penal provisions. A penal provision should be construed strictly: the condition precedent wherefor is service of notice.

(Emphasis supplied)

After hearing learned counsel for both the sides and upon going through the record, I find that the only evidence with regard to the dates of dishonour of the cheques, which have been brought on record are Exhibit-2, which is the Cheque Return Memo dated 31.8.2005 and Exhibit-2/1, which is the Cheque Return Memo dated 3.9.2005. No evidence has been brought on record as to when these bank return memos were brought to the knowledge of the complainant. However, the complainant himself has stated in the legal notice Exhibit-3, that the same were received by him on 9.9.05 and 12.9.05 respectively. From these dates of knowledge, the notice of demand was clearly sent much beyond the statutory period of 30 days, as admittedly it was posted on 7.11.2005.

However, even if the date of knowledge of dishonour of the cheques is taken most liberally as 18.9.2005, as is given in the notice dated 4.10.2005 (Exhibit-3), (Though no evidence thereof was brought on record in the Trial Court), the notice, which was posted on 7.11.2005, was clearly sent after the lapse of the statutory period of 30 days from the said date of knowledge as well.

Accordingly, I find and hold that the complainant failed to give the notice of demand to the accused within the statutory period of 30 days and the case is fully covered by the law laid down by the Hon''ble Supreme Court in M/s Rahul Builders (supra). Accordingly, the accused could not have been convicted of the offence u/s 138 of the N.I. Act. The Trial Court clearly committed an error in law in convicting and sentencing the respondent accused for the said offence, which wrong was rightly rectified by the Appellate Court acquitting the accused. In view of the aforementioned discussions, I do not find any illegality in the impugned judgment of acquittal passed by the learned Appellate Court, worth interference in this appeal. There is no merit in this appeal, which accordingly, fails and the same is, hereby, dismissed.