Kanailal Bhattacharjee Vs. Mrs. Bhajana Biswas and Another - Court Judgment

Excerpt:

.....(supra) contends that the case relied on behalf of the accused is the latest decision of the apex court of same strength on the point and in that case notice was served on the wife of the accused but the court held that it was not a proper service of notice on the accused towards dishonuor of the cheque. in m.d. thomas (supra) paragraphs 5, 6 and 7, the apex court held thus: “5. section 138 deals with the dishonour of cheque for insufficiency, etc. of funds in the accounts of the person who draws the cheque and lays down that such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both. 6. proviso to section 138 specifies the conditions which are required to be satisfied before a person can be convicted for an offence enumerated in the substantive part of the section. clause (b) of the proviso to section 138 cast on the payee or the holder in due course of the cheque, as the case may be, a duty to make a demand for payment of the said amount of money by.....

Judgment:

1. This appeal under Section 378(4) of the Code of Criminal procedure, 1973 (hereinafter mentioned as Cr.P.C.) is directed against the judgment and order of acquittal, dated 30.03.2007, passed by learned Judicial Magistrate, First Class, Court No.1, Agartala, West Tripura, in Case No.C.R.2141 of 2005.

2. Heard learned counsel, Mr. R. Chakraborty for the appellant and learned counsel, Mr. B. Nandi Majumder for respondent No.1. None appeared for respondent No.2.

3. Brief fact is that respondent No.1 (hereinafter mentioned as the ‘accused), in the 1^st part of September, 2004 requested the appellant (hereinafter mentioned as the ‘complainant) to lend her Rs.2,50,000/- for her business purpose. Pursuant to such request, the complainant lent the accused an amount of Rs.2,31,000/- on condition that she will return the amount within six months. In terms thereof towards repayment of the loan amount the accused issued two cheques, bearing No.0460378 dated 08.12.2004 for Rs.48,000/- and No.0460380 dated 27.01.2005 for Rs.1,83,000/-, drawn on Tripura Gramin Bank, Agartala Branch in favour of the complainant. On 11.02.2005 complainant tendered those cheques to the Cooperative Urban Bank Ltd., Agartala Branch where he maintained his account. On 02.04.2005 he was informed by his bank that the cheques issued by the accused were dishonoured on the ground of insufficiency of fund. On 04.04.2005, the complainant issued notice to the accused informing her dishonour of the cheques and also asked her to inform within three days from the date of receipt of the notice as to when and in what manner she will return the amount of Rs.2,31,000/-. It is the further case of the complainant that the accused received notice on 05.04.2005 but she remained silent and did neither repay the amount nor inform him anything. Thereafter, being compelled, the complainant filed the complaint before the learned Chief Judicial Magistrate, Agartala, West Tripura praying for punishment of the accused under Section 138 of the N.I. Act and also under Section 420 of IPC.

4. Learned Chief Judicial Magistrate transferred the case to the Court of Judicial Magistrate, First Class, who in due course, framed charges against the accused for commission of offence punishable under Section 138 of the N.I. Act and Section 420 of IPC to which the accused pleaded not guilty and claimed to be tried.

5. In course of trial the complainant examined himself as P.W.1 and also examined three more witnesses, namely, P.W.2 Smt. Swasti Rani Devi, wife of the complainant, P.W.3, Sri Gopal Banik, a private tutor and P.W.4, Sri Sajal Kr. Bhowmik, Branch Manager of Agartala Cooperative Urban Bank Ltd.

In support of his case, complainant also relied on the following documents:

(i) Exbt.P.1 series—Cheques bearing No.0460378 dated 08.12.2004 for Rs.48,000/- and No.0460380 dated 27.01.2005 for Rs.1,83,000/-.

(ii) Exbt.P.2—Counterpart of the deposit slip of the cheques dated 11.02.2005.

(iii) Exbt.P.3—Copy of notice dated 04.04.2005 in the name of the accused sent by the complainant.

(iv) Exbt.P.4—A.D. Card of the notice dated 04.04.2005.

(v) Exbt.P.5—Letter dated 27.05.2005 written by P.W.4 to the complainant intimating dishonour of the cheques.

(vi) Exbt.P.6—Medical certificate in the name of the complainant dated 27.05.2005.

The accused was examined under Section 313 of Cr.P.C. and on call the accused examined herself as D.W.3 and also examined two more witnesses, namely D.W.1 Purabi Majumder and D.W.2 Shambu Charan Das. No documentary evidence was adduced.

6. Learned Magistrate considering the evidence on record held that the complainant failed to prove service of notice on the accused as required under Section 138(b) of the N.I. Act, and therefore, recorded an order of acquittal from the charge framed under Section 138 of the N.I. Act.

The Court also acquitted the accused from the charge under Section 420 of IPC observing that the ingredients of cheating have not been proved.

Being dissatisfied, the complainant filed the present appeal challenging the finding of the learned Magistrate.

7. It is argued by learned counsel, Mr. Chakraborty for the appellant that the legal requirement for the complainant as prescribed under Section 138(b) of the N.I. Act is that of sending the notice to the drawee of the cheques, and once the notice is sent, the liability of the complainant is to be presumed to have been discharged. The complainant is not required to strictly prove that the accused received the notice sent by the complainant. In support of his contention, learned counsel referred the following case laws:

(i) K. Bhaskaran v. Vaidhyan Balan and Anr. reported in AIR 1999 SC 3762 : (1999) 7 SCC 510,

(ii) V. Raja Kumari v. P. Subbarama Naidu and Anr. reported in AIR 2005 SC 109

(iii) M/s Indo Automobiles v. Jai Durga Enterprises and Ors. reported in AIR 2009 SC 386.

It is further argued by learned counsel, Mr. Chakraborty that the ingredients of cheating have been established and the finding of the learned Magistrate on the charge framed under Section 420 of IPC is wrong and liable to be interfered. The accused with a view to escape from the charge has taken false plea that she did not receive the notice and that she did not deceive or cheat the complainant. Learned counsel, therefore, prayed for punishment of the accused according to law.

8. Per contra, learned counsel, Mr. Nandi Majumder appearing for the accused-respondent has argued that the trial Court rightly appreciated the evidence on record. There is no evidence that the notice was sent to the correct address of the accused. Burden lies on the complainant to prove that the notice was sent to the correct address of the accused and in that case only the ratio of the decisions referred by learned counsel, Mr. Chakraborty would be applied. In the case in hand, there is no evidence at all that the accused was/is a resident of the place where the notice was sent. The accused never resided in the address mentioned in the complaint. The A/D card shows that one Pinakshi Biswas received the notice, who is neither the accused nor anybody known to the accused, and under such circumstances, finding of the Court below that the legal requirement as prescribed under Section 138(b) of the N.I. Act has not been complied, cannot be disturbed and interfered by this Court in appeal. In support of his contention, learned counsel relied on the decision of the Honble Apex Court in the case of M.D. Thomas vs. P.S. Jaleel reported in (2009) 14 SCC 398 : (AIR 2011 SC (Cri) 2089).

It is further argued by learned counsel that fraudulent and dishonest intention of the accused on the date of drawing of the cheques has not been proved by the complainant, and therefore, the finding of the Court below, acquitting the accused from the charge under Section 420 of IPC, is also justified.

9. Definite case of the complainant is that on request of the accused, he lent her an amount of Rs.2,31,000/- in the first part of September, 2004. It was assured by the accused that she will repay the amount within six months i.e. by February, 2005. The complainant alleged that the accused towards repayment of the loan amount issued the cheques, marked as Exbt.P.1 series. The accused has taken the plea that she did not take any loan from the complainant and that she did not issue any cheque of Rs.2,31,000/- in favour of the complainant and that her cheque book was lost on 14.02.2005 and the cheques were drawn fraudulently, etc. The impugned cheques were issued on 08.12.2004 and 27.01.2005. Those were presented by the complainant to his banker, Cooperative Urban Bank Ltd., Agartala on 11.02.2005. Exbt.P.2 is the counterpart of the deposit slip. It proves that the accused with a view to avoid the responsibilities has taken a false plea abruptly that the cheque book was lost on 14.02.2005, which means before that the cheque book was with her. She took the plea after the cheques were presented to the bank by the complainant for collection. It is, therefore, evident that the accused has taken a false plea to avoid payment and to escape from punishment.

10. Chapter XIII of the N.I. Act prescribes special rules of evidence. Section 118 prescribes that until the contrary is proved, presumption shall be made that every negotiable instrument was made or drawn for consideration and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration and that every negotiable instrument bearing a date was made or drawn on such date, etc. The complainant has been able to prove that the accused had drawn those two cheques amounting to Rs.2,31,000/- in favour of the complainant towards due discharge of her debt. The evidence of P.W.4 supports the case of the complainant that the cheques were dishonoured and the complainant learnt about the dishonour of cheques on 02.04.2005 and the complainant collected those cheques from the Cooperative Urban Bank, Agartala, his banker, and subsequently, he collected a certificate issued by P.W.4, which is marked as Exbt.P.5. Section 139 of the Act prescribes, it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in the whole or in part, or any debt or other liability. The accused tried to disown her liability taking different false plea, but failed to prove any such plea. It is amply established that the accused has drawn two cheques (Exbt.P.1 series) and that those has been dishonoured for inefficiency of fund.

11. Proviso (b) to Section 138 of N.I. Act prescribes giving of notice in writing to the drawer of the cheque within fifteen days of receipt of the information. According to the complainant, the information was received on 02.04.2005 and he issued the notice on 04.04.2005 in the name of the accused in her address. The case of the complainant is that the accused received the notice on 05.04.2005. In support of his contention, the complainant relied on Exbt.P.4, the A/D card of the registered letter, which shows that one Pinakshi Biswas received the notice. There is no evidence on record that Pinakshi Biswas is the nick name of the accused or that the said Pinakshi Biswas is a member of the family of the accused. It is argued by learned counsel, Mr. Chakraborty that the address of the accused in which the notice was sent is the address of the accused, which is mentioned in the complaint. Neither the complainant nor any other witnesses uttered a single word that the address mentioned in the notice and in the complaint is the correct address of the accused. To that effect, no document also placed on record.

In the case of K. Bhaskaran (supra), the Apex Court observed thus:

“18. On the part of the payee he has to make a demand by “giving a notice” in writing. If that was the only requirement to complete the offence on the failure of the drawer to pay the cheque amount within 15 days from the date of such ‘giving the travails of the prosecution would have been very much lessened. But the legislature says that failure on the part of the drawer to pay the amount should be within 15 days “of the receipt” of the said notice. It is, therefore, clear that “giving notice” in the context is not the same as receipt of notice. Giving is a process of which receipt is the accomplishment. It is for the payee to perform the former process by sending the notice to the drawer in the correct address.

19. In Blacks Law Dictionary, “giving of notice” is distinguished from “receiving of the notice.” (vide page 621) “A person notifies or gives notice to another by taking such steps as may be reasonably required to inform the other in the ordinary course, whether or not such other actually comes to know of it.” A person “receives” a notice when it is duly delivered to him or at the place of his business.

20. If a strict interpretation is given that the drawer should have actually received the notice for the period of 15 days to start running no matter that the payee sent the notice in the correct address, a trickster cheque drawer would get the premium to avoid receiving the notice by different strategies and he could escape from the legal consequences of Section 138 of the Act. It must be borne in mind that Court should not adopt an interpretation which helps a dishonest evader and clips an honest payee as that would defeat the very legislative measure.

21. In Maxwells “Interpretation of Statues”, the learned author has emphasized that “provisions relating to giving of notice often receive liberal interpretation,” (vide page 99 of the 12^th edn.) The context envisaged in Section 138 of the Act invites 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. 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. The thrust in the clause is on the need to “make a demand”. It is only the mode for making such demand which the legislature has prescribed. A payee can send the notice for doing his part for giving the notice. Once it is despatched his part is over and the next depends on what the sender does.

22. It is well settled that a notice refused to be accepted by the addressee can be presumed to have been served on him, vide Harcharan Singh v. Smt. Shivrani and Ors. : (1981) 2 SCC 535 : (AIR 1981 SC 1284), and Jagdish Singh v. Natthu Singh (1992) 1 SCC 647 : (1992 AIR SCW 1747 : AIR 1992 SC 1604).

23. Here the notice is returned as unclaimed and not as refused. Will there be any significant different between the two so far as the presumption of service is concerned? In this connection a reference to Section 27 of the General Clauses Act will be useful. The Section reads thus:

“27. Meaning of service by post.—Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression “serve” or either of the expressions “give” 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.

24. No doubt Section 138 of the Act does not require that the notice should be given only by ‘post. Nonetheless the principle incorporated in Section 27 (quoted above) can profitably be imported in a case where the sender has despatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such non-service. Any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to the strategy of subterfuge by successfully avoiding the notice.”

In the case of V. Raja Kumari (supra) the Apex Court observed thus:

“The context envisaged in S.138 of Act invites a liberal interpretation for the person who has statutory obligation to give notice. If a strict interpretation is given that the drawer should have actually received notice or the period of 15 days to start running no matter the payee sent the notice on the correct address, a trickster cheque drawer would get a premium to avoid receiving the notice by different strategies, and he could escape from legal consequences of S.138 of the Act. It must be borne in mind that the Court should not adopt an interpretation which helps a dishonest evader and clips on honest payee as that would defeat the very legislative measure.

The payee has statutory obligation to give notice because he is presumed to be the loser in the transaction. Payee has to make demand by “giving a notice” in writing. If that was the only requirement to complete the offence on the failure of the drawer to pay cheque amount within 15 days from the date of such “giving”, the travails of the prosecution would have been very much lessened. But the Legislature say that failure on the part of the drawer to pay amount should have been within 15 days of “of the receipt” of the said notice. It is, therefore, clear that giving notice in the context is not the same as receipt of notice. Giving is a process of which receipt is the accomplishment. It is for the payee to perform the former process by sending the notice to the drawer at correct address. Once it is dispatched his part is over and the next depends on what sendee does.”

In the case of M/s Indo Automobiles (supra) the Apex Court relying on its previous decision in K. Bhaskaran (supra) and V. Raja Kumari (supra) reiterated the same view and held—

“Admittedly, notice under S.138-B of the Negotiable Instruments Act was sent to the respondents through registered post and under a certificate of posting on the correct address of the respondents. The High Court had quashed proceeding on the ground that although notice through registered post and also under certificate of posting were sent by the appellant/complainant to the respondents but because of the endorsement of the postal peon, the service could not be said to have been effected. In our view, the High Court was not justified in holding that service of notice could not be found to be valid.”

12. Learned counsel, Mr. Chakraborty contends that the ratio of the above decisions of the Apex Court may be applied fairly in the case of the complainant since the notice was sent to the correct address of the accused.

13. Learned counsel, Mr. Nandi Majumder relying on the decision of the Apex Court in the case of M.D. Thomas (supra) contends that the case relied on behalf of the accused is the latest decision of the Apex Court of same strength on the point and in that case notice was served on the wife of the accused but the Court held that it was not a proper service of notice on the accused towards dishonuor of the cheque. In M.D. Thomas (supra) paragraphs 5, 6 and 7, the Apex Court held thus:

“5. Section 138 deals with the dishonour of cheque for insufficiency, etc. of funds in the accounts of the person who draws the cheque and lays down that such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both.

6. Proviso to Section 138 specifies the conditions which are required to be satisfied before a person can be convicted for an offence enumerated in the substantive part of the section. Clause (b) of the proviso to Section 138 cast on the payee or the holder in due course of the cheque, as the case may be, a duty to make a demand for payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid.

7. In the present case, the notice of demand was served upon the wife of the appellant and not the appellant. Therefore, there is no escape from the conclusion that complainant-respondent had not complied with the requirement of giving notice in terms of clause (b) of proviso to Section 138 of the Act. Unfortunately, the High Court overlooked this important lacuna in the complainants case. Therefore, the conviction of the appellant cannot be sustained.”

Admittedly, the decision of the Apex Court in M.D. Thomas (supra) was taken on April, 2009 and the decision of the Apex Court in M/s Indo Automobiles (supra) was taken on 15.07.2008. So, the decision referred on behalf of the accused is latest decision on the point.

I have carefully gone through the evidence on record to ascertain whether the address mentioned in the notice and in the complaint is the correct address of the accused or not. As already observed earlier, no document in respect of address of the accused is placed on record by the complainant. It is categorically stated by the complainant that the accused had been serving as a fixed pay employee under the Information, Cultural Affairs and Tourism Department, Government of Tripura. So, it may be presumed that the accused has got a definite address or resident. The address given by the complainant in the notice and in the complaint petition is the house of her brother at Abhoynagar, near Buddha Mandir, Agartala, whereas the accused in her deposition stated that she resides in a rented house of her sister belonged to one Niranjan Biswas. There is no iota of evidence that anybody found the accused residing with her brother in the address given by the complainant. Notice was not sent to her official address, which was known to the complainant.

I have also gone through the record in depth and found that no summon or any other notice served on the accused in her address as mentioned in the complaint petition or the notice. After taking cognizance, while issuing process, learned Magistrate directed warrant of arrest against the accused and the accused surrendered before Court and released on bail. Not to say about any document, even there is no oral evidence that the address mentioned by the complainant is the correct address of the accused. Under such facts and circumstances, it cannot be said that notice was sent to the correct address of the accused. Hence, the ratio of the decisions relied on, by the learned counsel of the complainant cannot be applied in the given facts and circumstances of the case and the decision to that effect by the Court below cannot be disturbed.

14. Further, Section 142 of the N.I. Act prescribes certain limitation in respect of taking of cognizance. Clause (b) of Section 142 prescribes that the Court should not take cognizance of offence punishable under Section 138 of the Act if such complaint is not made within one month of the date on which the cause of action arises. In the case in hand, according to the complainant the notice was received by the accused on 05.04.2005. 15 days as prescribed in proviso (c) to Section 138 of the Act expired on 20.04.2005. So, the complaint was to be filed within thirty days from 20.04.2005, that means within 20.05.2005, but unfortunately in the present case the complaint was filed on 30.05.2005 i.e. after the prescribed period and learned Magistrate has taken cognizance though the period prescribed by law was expired.

The complainant, as I find along with the complaint filed a separate petition under Section 5 of the Limitation Act for condonation of 10 days delay in filing the complaint. No order was passed on that petition. In my opinion, the provision of Section 5 of the Limitation Act is applicable only to an appeal or an application/petition. It cannot be applied to extend the period of original limitation. By applying the provision of Section 5, limitation of taking cognizance on a complaint cannot be extended. There is no provision in the N.I. Act prescribing extension of the period of limitation in taking cognizance. Procedure for inquiry and trial of offence under Chapter XVII of N.I. Act, also not prescribed in the said Act. So, procedure prescribed in Cr.P.C. shall apply in respect of trial of an offence under N.I. Act. Section 4(2) of Cr.P.C. prescribes thus—

(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.

In view of the above provisions, the provisions of Chapter XXXVI of Cr.P.C., which is not inconsistent with the provisions of N.I. Act, may be applied and in my considered opinion provision of Section 173 of Cr.P.C. is applicable to the cases under N.I. Act. In the present case, though no petition was filed under Section 473 of Cr.P.C., the Magistrate taken cognizance after expiry of the period of limitation, while a petition under Section 5 of the Limitation Act was pending before it. Defence also did not raise any voice on the point. So, in the circumstances it may be presumed that the Magistrate, by implication, extended the period of limitation. Taking of cognizance, therefore, cannot be held to be void.

15. Regarding the charge under Section 420 of IPC, learned Magistrate, as I find summarily held that the ingredients of offence of cheating not proved and therefore recorded an order of acquittal. Section 420 of IPC prescribes punishment for cheating and dishonestly inducing delivery of property. The word, ‘cheating is defined in Section 415 of IPC thus:

“415 Cheating.—Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.

Explanation—A dishonest concealment of facts is deception within the meaning of this section.”

The definition of the words, “dishonestly” and “fraudulently” are also relevant which is defined in Sections 24 and 25 of IPC thus:

“24. “Dishonestly”.—Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing “dishonestly”.

25. “Fraudulently”.—A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise.”

In paragraph 10 of the complaint, the complainant alleged thus:

“10. That, the accused person fraudulently and dishonestly induced the complainant to lend her a huge amount of money which she fraudulently and dishonestly assured to repay within 6 months and subsequently by issuing 2(two) cheques knowing fully well that she had no sufficient fund in her account with the concerned Bank, i.e. Tripura Gramin Bank, Agartala Branch to satisfy the amount of the cheques, and thereby the accused person cheated the complainant.”

In his deposition the complainant stated that the accused cheated him by not making payment of the money within time given at the time of receiving the loan. But there is no iota of evidence adduced by the complainant that on the date of issuance of those cheques, the accused knew the fact that in her account there was no such amount available and still she dishonestly and fraudulently issued those cheques. The fraudulent and dishonest intention of the accused at the time of issuance of those cheques is to be proved to book her for an offence of cheating. The ratio of illustration (d) and (f) to Section 145 of IPC would apply in the case of the accused had there was any evidence adduced that the accused, had the knowledge on the date of issuing those cheques that she had no such money in her account. The complainant would adduce such evidence easily but no such evidence adduced. Therefore, in the circumstances, though, there is allegation made in the complaint but in the absence of any evidence thereof the accused cannot be punished under Sections 417 or 420 of IPC.

16. The appeal therefore fails and accordingly dismissed.

17. Send back the L.C. record along with a copy of the judgment.