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Judgment
N.A. Britto, J.—Heard Shri Saudagar, learned Counsel on behalf of the petitioner. The petitioner herein is an accused who has been convicted by the learned Magistrate by order dated 1.12.2008 and whose conviction has been upheld by the learned Sessions Judge by judgment dated 30.9.2009. The petitioner had taken a loan from the respondent/complainant''s Co-operative Society in the sum of Rs. 20,000/-. There is no dispute that as on 30.6.2007 a sum of Rs. 54,726/was due and payable by the petitioner/accused to the respondent/complainant as can be seen from the statement of accounts produced on behalf of the said complainant.
When the complainant''s officer went for recovery, the petitioner/accused gave five cheques i.e. to say on 30.4.2007. Cheque bearing No. 038746 dated 2.5.2007 for Rs. 10,000/-and cheque No. 038747 dated 14.6.2007 for Rs. 52,000/-were the subject matter of the complaints filed by the complainant.
There was no dispute that both the cheques when presented for payment were returned dishonoured and as a result the said complainant had sent a statutory notice to the accused which notice according to the petitioner/accused was received by his father who did not inform him. Thereafter, the complaints were filed against the accused by the said complainant.
The learned Trial Court came to the conclusion that the said complainant had produced the evidence before the Court to show that the accused had obtained the loan from the bank and towards the payment of the said loan, he had issued the said cheques in favour of the complainant in order to pay the legally enforceable debt which cheques when presented for payment were returned unpaid for insufficient funds, and the accused had also intimated by the complainant by registered A/D letter which the accused failed to comply and as such proceeded to hold the petitioner/accused guilty u/s 138 of the said Act.
Learned Additional Sessions Judge referred to the evidence of the complainant''s witness and concluded that even if the accused had given the subject cheques to the complainant only with the signature therein and the said cheques were thereafter returned by the complainant, the accused was liable for the amount of the cheques since the signature on the said cheques was admitted by the accused and as such the presumption was available to the complainant that the cheques were drawn for the consideration and burden was on the accused to rebut the said presumption. In coming to the said conclusion the learned First Appellate Court relied upon the case of K. Bhaskaran V/s Sankaran Vaidhyan Balan (1999 (4) ALL MR 452). As regards the non receipt of notice, learned Additional Sessions Judge again relied upon the said case of K. Bhaskaran ( supra ) and noted that the Apex Court has observed that Section 138 of the Act invited a liberal interpretation for the person who has the statutory obligation to give notice because he is presumed to be the loser in the transaction and it is for his interest the very provision is made by the legislature and held that the words in clause (b) of the proviso to section 138 of the Act show that payee has the statutory obligation to "make a demand" by giving notice and thrust in the clause is on the need to "make a demand", which was the only mode for making such demand which the legislature has prescribed. Learned Additional Sessions Judge also referred to the case of V. Raja Kumari V/s P. Subbarama Naidu ( 2005 Cri. L. J. 127 ) as well as the decision of this Court in the case of Mohamed Ali Mulla V/s State of Goa ( 2006 ALL MR 34 and came to the conclusion that the mere statement of the father of the accused that he did not give the letter/legal notice to his son, the accused was not sufficient to rebut the presumption available u/s 27 of the General Clauses Act, 1897. Learned First Appellate Court further held that no reason was given by the father of the accused as to why he did not ask any of his sons as to whom the said legal notice belonged to, in as much as no reason was given by the father of the accused as to why he did not make any efforts to know the name of his son to whom the said legal notice was addressed, especially when he clearly states in his examination in chief that the postman had informed him that the said registered letter was in the name of his son. Learned Additional Sessions Judge further observed that the complainant had sent the legal notice at the correct address of the accused and the same was received by the father of the accused and once the legal notice was despatched at the correct address, the part of the complainant was over and the accused had failed to prove that he did not receive the legal notice.
Learned Counsel on behalf of the petitioner points out to the evidence of the complainant''s witness and submits that the subject cheques were given by the accused to the complainant in blank and therefore there was no presumption which could have been drawn in favour of the complainant. In my view the submission of the learned Counsel cannot be accepted for the very reason stated by the learned Additional Sessions Judge. One does not know as to what happened to the other three cheques. Indeed the complainant''s witness had admitted that the body of the cheque was blank and further stated that the accused had told them to present the said cheque for Rs. 10,000/-before 3.5.2007 thereby clearly suggesting that the complainant had clear authority to fill in the necessary details and present the same for payment. In the light of that first submission made by the learned Counsel needs to be rejected.
Second submission of Shri Saudagar, the learned Counsel on behalf of the petitioner is that the receipt by the father of the accused, of demand notice, will not amount to receipt by the accused himself. In this regard, the Counsel has placed reliance on certain decisions. However, it must be stated that there is no dispute that the statutory notice was sent by the complainant at the correct address of the accused and indeed was received by the father of the accused. In the case of Sivakumar V/s Natarajan (2009 ALL MR 2165 (S.C.), the Apex Court has stated that "giving of notice", as stipulated u/s 138 of the Act, is not the same as receipt of notice and has further observed that issuance of notice would not by itself give rise to a cause of action but communication of the notice would. Learned Counsel has also placed reliance on the case of K. Narayana Nayak V/s M. Shivarama Shetty (2009 ALL MR 54) wherein it was observed that :
The idea behind sending a communication by registered post is that the communication should reach to the hands of the addressee himself and if the addressee was not present when the postman went to the correct address, he should have left a memo with the inmates of the house asking the addressee to receive the registered post from the post office or to visit the address again on the next day. But, in the instant case the postman is stated to have handed over the notice to one of the inmates of the house. However, the respondent contends that he had not received the notice. The receipt of registered post is acknowledged by one Sujaya Setty. The respondent in his evidence deposed that the name of his wife is Kumari Hegde. Respondent was not cross-examined on this evidence. The appellant has not confronted the signature of Sujaya Setty affixed in the acknowledged to the respondent to admit or deny the signature as that of his wife.
Learned Counsel has also placed reliance on an unreported decision of this Court dated 4.7.2002 in the case of Shri Vijayanand Venktesh Naik V/s Shri Thomas Rodrigues and another. In that case the notice was received by one Amonkar, as that appeared from the A/D card produced and in that context it was held that there was no conclusive proof of service of notice, no presumption could be raised that the accused had received the said notice. The case relied upon by the learned Counsel on behalf of the petitioner, particularly the last two stood on their own facts. Here is a case where the notice was delivered and accepted at correct address of the accused and was accepted by none other than the father of the accused who was told by the postman that it was addressed to one of his sons. It is highly unbelievable that the father did not try to find out either from the postman or subsequently from any of his sons as to which of the sons, the said notice was addressed to. The said notice having been delivered and accepted at the correct address of the accused, the presumption in terms of Section 27 of the General Clauses Act, 1897 had to follow and has been rightly drawn by the learned First Appellate Court. The said presumption could not have been rebutted by the addressees father''s evidence alone which certainly was not convincing. Second submission therefore needs to be rejected. Both the Courts have considered the case of the petitioner in right prospective. I find that there is no merit in the applications. Consequently, the same are hereby dismissed.