Naushad Ali vs State Of Uttarakhand And Another

Sharad Kumar Sharma, J

These Criminal Revisions were taken up on 18th September, 2019, on the said date none had appeared on behalf of the Revisionist to assist the Court. Consequently, the bail, which was granted to the revisionist by this Court on 03.09.2012 was cancelled.

Simultaneously, a direction was also issued to the Magistrate that as the effect of cancellation of bail, the direction was issued that the said order would be communicated to the Magistrate concerned for taking necessary consequential action. The matter is taken up today. Even today also, when the Criminal Revisions are taken up in the revised call, yet again none had appeared on behalf of the revisionist and, hence, these cases since being Criminal Revisions, this Court has got no other option except to proceed to decide the Revisions itself after hearing the counsel for the complainant respondent No.2, and the learned Government Advocate, who are present for the respondents.

Brief facts that has emerged for consideration before this court in the instant Criminal Revisions are that the proceedings by way of Criminal Complaint Case for the offence under Section 138 of the Negotiable Instruments Act was initiated against the revisionists, which was filed by respondent No.2, which was registered as Criminal Complaint Case No. 4702 of 2011 and Criminal Complaint Case No. 4703 of 2011, Nasruddin Ali Vs. Naushad Ali respectively. As per the finding, which has been recorded by Court below and even as per the complaint itself, the case was that the complainant in his complaint dated 30.06.2009, had submitted that the accused revisionist had agreed to sell his property, lying in khasra No. 1255 Ga, 1261 and 1262, having a total area of 0.2220 hectares, situated in Village Mehuwala Mafi, Pargana Kendriya Doon, District Dehradun. It was the case that it was assured by the revisionist accused that for the purposes of getting the sale deed executed, he had got issued two cheques, i.e. Cheque No. 004644 dated 14th November, 2008 for a sum of Rs.1,00,000/- as drawn by respondent No. 2 from account standing in the District Cooperative Bank Majra, Dehradun and the second cheque for an amount of Rs.5,00,000/- bearing Cheque No.004643 dated 14.10.2008, was too issued from his account standing at District Cooperative Bank Majra, Dehradun. Thus, the revisionist has received the said amount as an earnest money for sale of his land, thus had received a total money of Rs.6,00,000/- from complainant/respondent No.2.

The case of the complainant/respondent No.2 in his complaint dated 30.06.2009, is that on the receipt of the aforesaid two cheques on 14.11.2008, it was agreed by the revisionist that on the receipt of the aforesaid two cheques, he would execute the sale deed on 25.11.2008. It was the case of the complainant that for getting the sale deed executed, he got the stamp paper purchased for a sum of Rs.38,000/- and got the sale deed transcribed on it in the name of his wife, i.e. of respondent No.2, herein. On the agreed date fixed for sale deed to be executed, it is the case of the complainant that the revisionist did not appear before the Sub Registrar to execute the sale deed, despite the fact that the balance amount of agreed sale consideration was also paid by respondent No.2, to the revisionist in the presence of three witnesses. One of them was Pradhan of the village. It is the case of the complainant that when he further attempted to get the sale deed executed, it was complained by the revisionist that he has not executed the sale deed, because the complainant had issued direction to the Bank to stop payment, as made by the two cheques dated 14.11.2008. It is the case of the complainant that then the revisionist demanded a payment of Rs.6,75,000/- in cash, and assured to execute the sale deed in favour of Noor Jahan wife of the complainant/respondent No.2. Hence, it is his case that on 01.12.2008, the complainant made cash withdrawal from his bank of Rs.6,75,000/- and made the payment to the revisionist in the presence of Pradhan Irshad Ali, Mustakeen and Sahid Hasan. Thus, complainant contended that as of now a total amount of Rs.7,50,000/- as consideration for the property was paid by him to the revisionist, but still the sale deed was not executed by him.

Later, the case of the respondent No. 2/complainant was that a settlement was arrived between the parties on 17.04.2009, in presence of some respectable persons of the society. It was then, it is submitted that Naushad/revisionist had prepared a receipt under his signature of having received a sum of Rs.7,50,000/- and gave it as a token of proof to the respondent No.2 in presence of witness and assured to execute sale deed on 02.06.2009, in favour of wife of respondent No.2, i.e. Noor Jahan. But, yet again, the complainant submitted that despite of having accepted Rs.7,50,000/-, despite of issuing receipt of acceptance of amount of money, despite of assurance to execute the sale deed on 02.06.2009, he had not appeared before the Sub Registrar for the execution of the sale deed.

It is the case of the complainant that the revisionist had denied to execute the sale deed and had returned the money to respondent No.2 by issuing five cheques of different dates in favour of respondent No. 2, out of the aforesaid payment made by five cheques. Two cheques, the details of which, are given hereunder:-

Cheque No. 974657 dated 15.05.2009 for Rs.1,70,000/- and, Cheque No. 974658 dated 15.05.2009 for Rs.2,00,000/-drawn from the account of the revisionist from his account standing in Punjab and Sindh Bank, Dehradun. But, when the cheques detailed above were presented by the complainant for its payment, the same was informed by the Bank of the revisionist to be dishonoured due to insufficiency of the amount of outstanding balance in his account by the Bank on 16.05.2009, as exhibited by paper No. 7 Ka.

Hence, it is the case of respondent No. 2 that revisionist had committed an offence under Section 138 of the Negotiable Instruments Act as well as Section 420 IPC, for which, before drawing the proceedings, he had issued notices through his Advocate on 19.05.2009, paper No. 8 Ka and despite of service of notice and even after the lapse of 15 days thereafter, the revisionist had not returned the payment. Hence, the complaint case under Section 138 of the N.I. Act on 30.06.2009.

On initiation of the complaint proceedings on 30.06.2009 as per the procedural finding recorded, the accused persons were provided with all the relevant documents, however, at the stage when summons of the complaint proceedings were provided to the revisionist under Section 251 of the Cr.P.C. The revisionist had attempted to deny the fact with regard to the commission of the offence under Section 138 of the Negotiable Instrument Act. Apart from the oral denial by the accused/revisionist. The complainant has also recorded a statement, which was recorded as PW1 of the complainant and in the evidence thus adduced in support of the statement recorded, the original cheque issued by revisionist, the bank memo of dishonoured of cheques and the notice issued by respondents and its receipt by the accused were also produced before the Trial Court as exhibits. Before the Trial Court, the convict revisionist has not led any evidence in support of his contention in defence, pertaining to the alleged offence with regard to the commission of an offence under Section 138 of the Negotiable Instruments Act. The Trial Court recorded the statements under Section 200 on 13.07.2009 and 202 Cr.P.C. and, consequently, summoned the revisionist in aforesaid complaint cases.

The only statement, which has been projected by the accused revisionist in his statement recorded under Section 313 of the Cr.P.C., it was to the effect that there was no cheque issued by him nor any notice in lieu of dishonour of the cheque was ever issued by the complainant and which was ever received by him .

The learned Trial Court, after considering the rival contentions and after appreciating the evidence and statement recorded twice under Section 251 Cr.P.C. on 29.01.2010 and, in particular, the effect of agreement for sale dated 4th November, 2008, agreeing for selling the property with regard to the fact of issuance of the cheques, it has further been pleaded by the respondent/ complainant that when despite of request to revisionist, where he has called upon the accused person to execute the sale deed in order to get the same executed before the Sub Registrar, despite that all the formalities required for executing the deeds were fulfilled by the complainant/respondent but the accused revisionist never appeared, but rather the cheques, which were issued by him on 15.05.2009, which was deposited by him to the Bank for its payment in relation to the said two cheques, which were issued by him on 15.05.2009 were dishonoured by bank on 16.05.2009, recording thereof that the balance in the account of the accused revisionist was insufficient.

Since there was non compliance of the notice by revisionist within the time period provided therein, the complaint case proceeded on 30.06.2009, in relation to the two cheques as referred above because the same stood dishonoured on its presentation on 16th May, 2009, on the ground that there was an insufficient amount as referred in para 11 of the finding recorded by the Trial Court judgment and further as would be apparent from the bank memo issued by the Bank dishonouring the cheques on 16th May, 2009, i.e. paper No. 7 Ka.

Faced with the contingency, the complainant has issued a notice on 19th May, 2009, paper No. 8 Ka which was served upon the revisionist from the view point that the said notice as sent by complainant on 19th May, 2019, though, it was not shown to have been received by the revisionist, but the paper No. 9 Ka, i.e. receipt filed by respondent it showed its service on revisionist, but, in view of the fact that the envelope was never received back un-served, the Court has drawn a presumption under Section 27 of the General Clauses Act with regard to the effective service of notice would be presumed to have been made by the complainant on the revisionist, herein.

After the scrutiny of the aforesaid version as raised in the complaint, one aspect which is quite apparent is that there was an issuance of the two cheques by the revisionist on 15.05.2009. It was a cheque, which was issued by the revisionist in lieu of return of the acceptance of the earnest money for executing the sale deed as a sale consideration, which was to be executed as a consequence of the agreement for sale. It is also established that because it was not controverted by the evidence that the cheque could not be honoured on account of the fact that the bank has given an intimation on 16.05.2009 that there was insufficient balance amount standing in the account of the revisionist. The learned Trial Court by the judgment impugned dated 20th December, 2011, held that the accused revisionist was unable to prove his case to the contrary and it has also further recorded the finding by the Trial Court that after the receipt of the notice issued by the complainant on 19th May, 2009, there is nothing on record brought by the revisionist that even thereafter the receipt of the notice dated 19th May, 2009, any effort was made by the revisionist to pay the amount, which was due to be paid under the cheques issued by the revisionist on 15.05.2009.

In view of the aforesaid backdrop and in view of the presumption drawn under Section 27 of the General Clauses Act about the service of notice 19.05.2009 to be read with Section 138 of the Negotiable Instruments Act, the revisionist has been unable to discharge his burden of proof with regard to the circumstances, under which, the cheques issued by him were dishonoured by the Bank as he has led no evidence in support of his defense, and consequently, the learned Judicial Magistrate, by the judgment dated 20th December, 2011, had convicted the revisionist and has directed him to undergo the sentence for an imprisonment for a period of one year and a penalty of Rs.3,70,000/- lacs was imposed by the Judicial Magistrate in Complaint Case No. 4702 of 2011 and similarly in Complaint Case No. 4703 of 2011, an identical sentence was imposed with a penalty of Rs.4,00,000/-.

This judgment of conviction of the Judicial Magistrate dated 20th December, 2011 was challenged by the revisionist in the Criminal Appeal, being Criminal Appeal No. 4 of 2012, Naushal Ali Vs. State of Uttarakhand in relation to the Complaint Case No. 4702 of 2011, whereas a Criminal Appeal No. 3 of 2012, Naushad Ali Vs. State out of judgment of conviction in Complaint Case No. 1403 of 2011, was preferred by the revisionist. The Appellate Court too by the judgment dated 9th August, 2012, has dismissed the appeal and as a consequence, it has resulted into the affirmation of the judgment of the Trial Court dated 20th December, 2011 holding thereof that the revisionist was responsible for the commission of the offence under Section 138 of the Negotiable Instruments Act.

The Appellate Court too, in its judgments dated 9th August, 2012, which is impugned in the Revisions, has drawn the implications of the circumstances as prevalent in the present case in view of the settlement of offence under Section 138 of the N.I. Act in accordance with the wider principle, which has been laid down to be determined for the purposes to bring an offence under Section 138 of N.I. Act as to be in violation of Section 138 of the N.I. Act in the light of the parameter given in para 9 of the judgment as reported in (2010) 2 SCC (Cri) 218, Jugesh Sehgal Vs. Samsher Singh Gogi.

"It is manifest that to constitute an offence under Section 138 of the Act, the following ingredients are required to be fulfilled:

(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;

(ii) the cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;

(iii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;

(iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;

(v) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;

(vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice;"

This Court too agrees with the aforesaid preposition and parameters laid down for trying an offence under Section 138 of the N.I. Act.

If the wider conditions, which has been given by the Hon'ble Apex Court in the said case, it was in order to make the offence punishable under Section 138 of the N.I. Act and in the present case, all those circumstances are existing for the reasons that the fact of issuance of the cheques is not disputed. The intimation by the Bank with regard to the dishonour of the cheques due to the insufficiency of amount in account is a fact established by evidence on record and in particular for the purposes of initiation of the proceedings under Section 138 of the Act, what is essential is that the prior notice was issued by the complainant on 19th May, 2009, which was served on the revisionist and when despite of the service, when no efforts was made by the revisionist to meet the liability, which stood due to dishonouring of the cheques issued by the revisionist to the present complainant/respondent.

Hence, in view of the concurrent finding, which has been recorded by both the Courts below and particularly, in view of the ratio as laid down by the Hon'ble Apex Court in the judgment as reported in AIR 2006 SC 2179, D. Vinod Shivappa Vs. Nanda Belliappa, wherein, in para 11 the Hon'ble Apex court has held as under :-

"11. If a notice is issued and served upon the drawer of the cheque, no controversy arises. Similarly if the notice is refused by the addressee, it may be presumed to have been served. This is also not disputed. This leaves us with the third situation where the notice could not be served on the addressee for one or the other reason, such as his non availability at the time of delivery, or premises remaining locked on account of his having gone elsewhere etc. etc. If in each such case the law is understood to mean that there has been no service of notice, it would completely defeat the very purpose of the Act. It would then be very easy for an unscrupulous and dishonest drawer of a cheque to make himself scarce for sometime after issuing the cheque so that the requisite statutory notice can never be served upon him and consequently he can never be prosecuted. There is good authority to support the proposition that once the complainant, the payee of the cheque, issues notice to the drawer of the cheque, the cause of action to file a complaint arises on the expiry of the period prescribed for payment by the drawer of the cheque. If he does not file a complaint within one month of the date on which the cause of action arises under Clause (c) of the proviso to Section 138 of the Act, his complaint gets barred by time. Thus, a person who can dodge the postman for about a month or two, or a person who can get a fake endorsement made regarding his non availability can successfully avoid his prosecution because the payee is bound to issue notice to him within a period of 30 days from the date of receipt of information from the bank regarding the return of the cheque as unpaid. He is, therefore, bound to issue the legal notice which may be returned with an endorsement that the addressee is not available on the given address."

The Hon'ble Apex Court has held that in an event of dishonour of the cheques issued by the revisionist is established, and if it is established that on its presentation, it was dishonoured due to insufficiency of the amount, it will lead to an unflinching inference that the offence under Section 138 of the Act stands established and that too when on receipt of the notice issued by the complainant on the dishonour to the cheque, if no effort is made by the accused persons to make good the amount by remitting it to the complainant, the offence under Section 138 of the N.I. Act would be deemed to be established.

In these circumstances, the Hon'ble Apex Court has further postulated in a number of cases that once the notice is shown to have been issued and dispatched by the complainant as against the accused person for non paying of the amount due to be paid on account of dishonour of the cheques, a presumption will go that the fact of issuance of the cheques and its dishonour remained unrebutted and hence, the accused person would be liable for punishment under Section 138 of the N.I. Act, as it has been held in case reported in 2002 CrLJ 1185 (Bombay), Malan Bai Ratnaparkhi Vs. Goving R. Motade and others as under :-

"7. ........once the notice is shown to have been dispatched by post and the envelope in which such notice is shown as was carrying correct address of the sendee written on it, the presumption would arise in favour of the sender to the effect that such notice was only duly served upon the sendee unless that presumption is rebutted by necessary evidence along with the fact that the sendee was not responsible for such non-service. It is not sufficient to show that the letter was not served upon the sendee but, it is necessary for the sendee to establish that it was not on account of the fault on the part of the sendee that the service could not be effected. Undoubtedly, the decision of the Apex Court is in the matter under Section 138 of the Negotiable Instruments Act. The case in hand also is relating to the offence under Section 138 of the said Act. Being so, it was primarily for the petitioner in the case in hand to rebut the presumption regarding service of notice sent to her by the respondent No. 1. It was sought to be contended that difference in numbers, one on the registration receipt and one on the envelope of the notice as well as failure to examine the postman, sufficiently rebut the presumption of service. There is no doubt that the records and more particularly, the judgments of both the Court is clearly disclose that the number on the registration receipt relating to the posting of the notice of demand by the respondent No. 1 discloses a different number from one which was found on the envelope wherein notice of demand was posted to the petitioner. But, at the same time, it is to be noted that the envelope in which the notice was sent, carried the correct address of the sendee. Added to this, as rightly pointed out by the learned Advocate for the respondent No. 1, there was a specific suggestion put to the respondent No. 1 to the effect that the endorsement of refusal of notice by the postman on the envelope was false endorsement and was got made by the respondent No. 1 in collusion with the postman. Once, it is not disputed by the petitioner that the postman either by himself or in collusion with the respondent No. 1, had made such an endorsement on the envelope, the fact that notice was sent to the petitioner stands proved beyond doubt. It also establishes the fact that the notice was bearing the correct address of the petitioner. Being so, in terms of the provisions contained under Section 27 of the General Clauses Act, there was a presumption of service of such notice on the petitioner. Whether really there was a false endorsement and whether the petitioner was absent at the residence when the postman approached her residence are the facts within the knowledge of the petitioner and were required to be established by the petitioner herself. The Courts below, in this regard, have rightly referred to Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, burden of proving that fact is upon him. Whether the petitioner was absent at her residence on 1st December, 1993 when the postman had approached her to serve the notice or not, was entirely within the knowledge of the petitioner herself. It was sought to be contended that the postman might have approached her residence in the morning hours and the evidence shows that she came to her residence at 1 p.m. only. In case of any such evidence on record, it all the more helps the prosecution rather than rendering any assistance to the petitioner accused to discharge the burden. There is no presumption that the postman must have approached the addressee during morning session only. Admittedly, there is no evidence on record to show that the postman had approached the petitioner's residence during morning hours. There is no evidence on record to show that there is a practice in the village of serving the mail only during morning hours. So, it was entirely within the knowledge of the petitioner to prove that she was absent at her residence when the postman had approached to serve the notice and having failed to do so, the petitioner cannot blame the respondent No. 1 for non-examination of the postman. The question of respondent No. 1 examining the postman would have arisen only in case the petitioner had discharged the initial burden of proving that there was failure on the part of the respondent No. 1 to serve the notice."

In view of the aforesaid circumstances, all the ingredients and conditions which were required to draw the proceedings under Section 138 of the N.I. Act stood satisfied and particularly, in view of the finding recorded by the learned Trial Court, it stands settled that the revisionist was rightly held to be responsible for commission of the offence under Section 138 of the Act, and consequently, the said judgment stood affirmed by the learned Appellate Court too vide its judgment dated 9th August, 2012.

After having heard the learned counsel for the respondents and after considering the record, which has been produced before this Court in the present Revisions, this Court is of the view that both the Courts have not committed any apparent error or any procedural flaw in concluding the judgment of conviction for the offence under Section 138 of the Act because the fact of issuance of the cheques, its dishonour and the liability to pay the amount are the unrebutted facts. Consequently, this Court does not find that there happens to be any apparent error in the judgment of conviction rendered by the Courts below to exercise the revisional jurisdiction.

Consequently, the Revisions lack merit and the same are accordingly dismissed.