S. Rajan vs E. Satyanarayanan

B. Rajendran, J.—Originally, the respondent/accused has been convicted by the learned XV Metropolitan Magistrate, George Town, Chennai, in C.C. No. 1896 of 2002, by order dated 14.10.2006, for the offence u/s 138 of Negotiable Instruments Act and sentenced to undergo six months simple imprisonment and to pay a compensation of Rs. 1,80,000/- to the complainant within two months, in default to undergo two months simple imprisonment. On Appeal, the learned VI Additional Sessions Judge, Chennai, has set aside the conviction and sentence by judgment, dated 5.3.2008, in C.A. No. 294 of 2006 and acquitted the accused from the offence u/s 138 of the Negotiable Instruments Act. Aggrieved against the same, the complainant is before this Court with this revision. The facts of the case in a nut-shell are as follows:-The Petitioner/complainant preferred a complainant against the respondent/accused alleging that the accused borrowed a sum of Rs. 1,50,000/- on 4.2.2001 and executed a pro-note and also to repay that amount, he has issued a cheque dated 5.3.2002 for Rs. 1,50,000/- and when the cheque was presented before the Punjab National Bank, the same was returned with an endorsement, ''Insufficient Fund'', therefore the complainant issued a notice to the accused on 21.3.2002, which was returned to the complainant, inspite of the notice, the accused did not pay any amount, therefore, the complainant preferred a complaint u/s 200 Cr.P.C. for the offence u/s 138 of the Negotiable Instruments Act.

Mr. N. Baaskaran, learned counsel for the petitioner/complainant submits that the petitioner had sent a statutory notice to the respondent/accused on 21.3.2002 and it was intimated by the postal authorities to the accused on 22.3.2002, but inspite of the same, the accused did not choose to take the notice from the Postal Department, therefore, it was returned to the petitioner/complainant. But, the first Appellate Court on a wrong assumption that the petitioner/complainant has to prove the actual delivery of the notice, has set aside the order of conviction and sentence passed by the lower Court and allowed the appeal, dismissing the complaint. The learned counsel would further contend that earlier, on appeal, the matter was remitted back to the lower Court, after remand, the accused has examined an Officer from the Postal Department as D.W. 3-Ramamurthy, who has clearly deposed regarding the intimation but, in spite of the same, the first Appellate Court has wrongly come to the conclusion that the statutory notice has not been properly served, therefore, only on the sole ground that the service of statutory notice has not been clearly proved by the complainant, the complaint was dismissed. Aggrieved against the same, the complainant has come forward with the present revision.

To substantiate his contention, the learned counsel for the petitioner/complainant would rely on the latest decision of the Supreme Court reported in C.C. Alavi Haji Vs. Palapetty Muhammed and Another, r and he would contend that when the notice was sent to the correct address of the accused as per Section 27 of General Clauses Act, the presumption is that the notice has been duly served on the accused, therefore, in this case, when the petitioner/complainant has taken all possible steps to serve notice on the accused and the same has been proved, the conclusion of the first Appellate Court that the service of statutory notice has not been clearly proved by the complainant and dismissing the complaint is not correct and therefore, he challenges the order of dismissal.

Mr. M. Kamalakannan, learned counsel for the respondent/accused would mainly contend that the petitioner/complainant has not actually proved in accordance with law that the notice has been properly served on the accused. He would rely upon the judgment of this Court reported in S.S. Ummul Habiba, Proprietor, Alim Auto Supplies Vs. B. Rajendran, for the proposition that the complainant should also aver in complaint that accused is evading service to establish service of notice. He would further rely on the decision of Madurai Bench of this Court reported in (2008) 1 MLJ (Crl.) 252, Michel Anthony vs. P.S. Chandrasekara Raja, for the proposition that in case of return of cover as ''No such addressee'', it is not the proper service. Lastly, he would rely on the decision of the Supreme court reported in Sridhar M.A. Vs. Metalloy N. Steel Corporation, for the proposition that notice should not be deemed to have been served as a matter of course and when the notice has not been served, the accused is entitled to benefit of doubt. Relying on the decisions cited supra, the learned counsel would submit that since, in this case, the notice has not been proved to be served on the accused, the first Appellate Court has rightly dismissed the complaint and hence, the order of the first Appellate Court is correct.

Heard both sides. By consent, the main Criminal Revision is taken up for final disposal.

This case has a long chequered history. Originally, the complaint was allowed by the lower Court and the accused was convicted for the offence u/s 138 of Negotiable Instruments Act and sentenced to undergo six months simple imprisonment and to pay a compensation of Rs. 1,80,000/- to the complainant within two months, in default to undergo two months simple imprisonment. Aggrieved against the same, the accused preferred an appeal. In the appeal, the main question was, whether the notice was properly served on the accused or not. To ascertain the said position, the matter was remitted back to the lower Court and after remand, the defence examined D.W. 3, an Officer from the Postal Department, for the purpose of proving the service of summons on the accused. In the chief-examination, D.W. 3 has categorically stated that the intimation was given to the accused. But, the lower Court convicted the accused based on the evidence available, against which, the accused preferred an appeal. In the first Appellate Court, his main argument was that even though, the D.W. 3 was cross-examined, there was not a clear picture, whether the intimation was properly given or not and the date on which the notice was returned to the complainant and there was a discrepancy in the evidence of D.W. 3 and citing such discrepancy in the evidence of D.W. 3 the first Appellate Court has stated in its judgment that the exacts date on which the notice has been returned to the complainant is not known and D.W. 3 was not sure, whether the notice was kept in the Postal Department atleast for five days as per the then pending Rules, therefore, taking into consideration the discrepancy regarding, after intimation was given, whether the notice was kept pending at least for five days in the Postal Department and when this discrepancy has not been properly stated by the Officer from the Postal Department, the first Appellate Court disbelieved the theory that the notice was properly intimated to the accused and held the notice was not served and acquitted the accused from the offence u/s 138 of Negotiable Instruments Act. Aggrieved against the same, the present revision has been filed by the complainant.

In this connection, learned counsel for the petitioner/complainant also clearly pointed out that D.W. 3, the very same Officer from the Postal Department, after remand, has very categorically stated that Ex. P.5-Returned Cover has been returned with an endorsement ''NP/ID/223''. D.W. 3 in his chief-examination has categorically stated that after intimation, they will maintain a register or retain the notice in the Postal Department for a period of seven days and even after seven days, if the notice is not claimed, it will be returned to the concerned person, who has sent it and they will also make an endorsement in the notice as ''unclaimed''. In this case, though, in the notice, it has been stated as ''unclaimed'', but he was not able to say on which date, it was returned back to the complainant.

In the above connection, the learned counsel for the respondent/accused relying upon the evidence of the complainant, who was examined as P.W. 1, mainly argued that P.W. 1 in his deposition as well as in the complaint has only stated that he has given a notice on 21.3.2002 and it has been intimated to the accused on 22.3.2002 and thereafter. It has been received by him, but, the date on which, the complainant has received back the notice has not been clearly mentioned by him and the wordings in his deposition, 21.3.02, , only denotes that the notice dated 21.3.2002, after intimation to the accused has been returned back to the complainant on some other date.

In the above connection, when we read the complaint, it is seen that the complainant has clearly stated that the notice was sent on 21.3.202 calling upon the accused to pay the amount and the cover addressed to the accused has been returned with an postal endorsement, ''the intimation delivered on 22.3.2002''.

In this connection, it is also pertinent to point out that the accused u/s 313(1)(b) Cr.P.C., questioning has not raised this point that the notice has not been properly served on the accused or he has not even been duly intimated by the postal authorities regarding the notice and it is not the case of the accused also that the address given in the notice is a wrong address, in fact, the summons have been served only in the said address. It is not the case of the accused that even after the service of notice though Court, he has availed the opportunity to pay the amount within 15 days.

With the above back ground, when we analyse this case with the decision of the Supreme Court reported in C.C. Alavi Haji Vs. Palapetty Muhammed and Another, regarding presumption as to service of notice, in such case, whether there is necessity of making averments in the complaint that the service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved, the Supreme Court has held that there is no need to make such averments in the complaint for raising presumption as to service in the said situation as in view of Section 27 of the General Clauses Act and Section 114 of Evidence Act, once the notice is sent by registered post by correctly addressing the drawer of the cheque, the service of notice is deemed to have been effected.

At this juncture, it is worthwhile to extract the relevant portions from the decision cited supra, i.e. C.C. Alavi Haji Vs. Palapetty Muhammed and Another, which reads as under:-

It is, thus, trite to say that where the payee dispatches the notice by registered post with correct address of the drawer of the cheque, the principle incorporated in Section 27 of the G.C. Act would be attracted; the requirement of Clause (b) of proviso to Section 138 of the Act stands complied with and cause of action to file a complaint arises on the expiry of the period prescribed in Clause (c) of the said proviso for payment by the drawer of the cheque. Nevertheless, it would be without prejudice to the right of the drawer to show that he had no knowledge that the notice was brought to his address.

However, the referring Bench was of the view that this Court in D. Vinod Shivappa Vs. Nanda Belliappa, ), did not take note of Section 114 of Evidence Act in its proper perspective. It felt that the presumption u/s 114 of the Evidence Act being a rebuttable presumption, the complaint should contain necessary averments to raise the presumption of service of notice; that it was not sufficient for a complainant to state that a notice was sent by registered post and that the notice was returned with the endorsement out of station; and that there should be a further averment that the addressee-drawer had deliberately avoided receiving the notice or that the addressee had knowledge of the notice, for raising a presumption u/s 114 of the Evidence Act.

Therefore, the moot question requiring consideration is in regard to the implication of Section 114 of then Indian Evidence Act, 1872 insofar as the service of notice under the said proviso is concerned. Section 114 of the Indian Evidence Act, 1872 reads as follows:-

Court may presume existence of certain facts-The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

Illustrations

The Court may presume-(f) that the common course of business has been followed in particular cases;

According to Section 114 of the Act, read with Illustration (f) there under, when it appears to the Court that the common course of business renders it probable that a thing would happen, the Court may draw presumption that the thing would have happened, unless there are circumstances in a particular case to show that the common course of business was not followed. Thus, Section 114 enables the Court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. Consequently, the court can presume that the common course of business has been followed in particular cases. When applied to communications sent by post, Section 114 enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. But the presumption that is raised u/s 27 of the G.C. Act is a far stronger presumption. Further, while Section 114 of Evidence Act refers to a general presumption, Section 27 refers to a specific presumption. For the sake of ready reference, Section 27 of GC Act is extracted below:

Meaning of service by post:--Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any documents to be served by post, whether the expression serve or either of the expressions given or send or any other expression is used, then unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.

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 served or 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 & Ors. [(1996)] 7 SCC 523] 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.

15"..

As noticed above, the entire purpose of requiring a notice is to give an opportunity to the drawer to pay the cheque amount within 15 days of service and thereby free himself from the penal consequences of Section 138. In Vinod Shivappa this Court observed:(SCC p.462, para 13)

One can also conceive of cases where a well intentioned drawer may have inadvertently missed to make necessary arrangements for reasons beyond his control, even though he genuinely intended to honour the cheque drawn by him. The law treats such lapses induced by inadvertence or negligence to be pardonable, provided the drawer after notice makes amends and pays the amount within the prescribed period. It is for this reason that Clause (c) of proviso is meant to protect honest drawers whose cheque fails to make the payment within 15 days of the receipt of the said notice. To repeat, the proviso to Section 138 provides that the section shall not apply unless the drawer of the cheque fails to make the payment within 15 days of the receipt of the said notice. To repeat the proviso is meant to protect honest drawers whose cheques may have been dishonoured for the fault of others, or who may have genuinely wanted to fulfill their promise but on account of inadvertence or negligence failed to make necessary arrangements for the payment of the cheque. The proviso is not meant to protect unscrupulous drawers who never intended to honour the cheques issued by them, it being a part of their modus operandi to cheat unsuspecting persons.

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 rejected A person who does not pay within 15 days of receipt of the summons from the court along with the copy of the compliant 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 Bhaskarans case (supra) if the giving of notice in the context of Clause (b) of the proviso was the same as the receipt of notice a trickster 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.

Therefore, as per the decision of the Supreme court cited supra, the petitioner/complainant has taken all the necessary steps to send the notice to the correct address and the examination of D.W. 3. an officer from the postal department by the defence himself has clearly proved that the intimation was given to the respondent/accused, therefore he has taken all the recourse available to him under law and proved the case of notice being served on the accused. As rightly pointed out by the learned counsel for the petitioner/complainant, it is not the case of the respondent/accused that the address given in the notice is a wrong address. Even after the service of notice through Court, the respondent/accused has not availed the opportunity to pay the amount within 15 days, therefore, he cannot claim that the statutory notice u/s 138 of Negotiable Instruments Act, has not been properly served on him. In view of the latest Supreme Court decision cited supra, C.C. Alavi Haji Vs. Palapetty Muhammed and Another, all the other judgments cited by the learned counsel for the respondent/accused has no relevance to the facts and circumstances of the present case, therefore, this court to liable to be set aside and the conviction of lower Court finding the respondent/accused for the offence u/s 138 of Negotiable Instruments Act is liable to be confirmed.

Next, coming to the question of sentence, at this point of time, the learned counsel for the respondent/accused only pleaded that some leniency may be shown to the respondent/accused.

Taking into consideration the long pending litigation between the petitioner/complainant and respondent/accused from the year 2002 and the cheque is also of the year 2002, suffice to state that the respondent/accused will pay a sum of Rs. 1,50,000/- being the cheque amount, to the petitioner/complainant and also a sum of Rs. 30,000/- as compensation to the petitioner/complainant. In the result the criminal revision is allowed. The order of acquittal passed by the first Appellate Court is set aside. The conviction passed by the lower Court for the offence u/s 138 of Negotiable Instrument Act is confirmed and the sentence imposed by the lower Court below is modified to the effect that the petitioner shall pay the entire cheque amount of Rs. 1,50,000/-(Rupees One Lakh and Fifty only) and also a compensation of Rs. 30,000/- (Rupees Thirty Thousand only) to the petitioner/complainant the depositing the same to the credit of C.C. No. 1896 of 2002 on the file of XV Metropolitan Magistrate, George Town, Chennai, within a period of four months from the date of receipt of a copy of this order. On such deposit, the lower Court, after ascertaining the correct details, shall pay the amount to the petitioner/complainant forthwith.

On failure to comply with the above condition, the respondent accused shall be sentenced to undergo two months simple imprisonment and the lower Court is at liberty to take steps to arrest the petitioner/accused and to commit him to prison, to undergo the two months simple imprisonment.