HON'BLE SRI JUSTICE V.SURI APPA RAO CRL.A.NO.646 OF200726-11-2013 Mutyala Bhushanam .. Appellant Patneedi Sreeramamurthy and another.. Respondent Counsel for the Appellant: Sri S.Rajn Counsel for respondent No.1: Sri S.Ramachandra Prasad Counsel for respondent No.2: Public Prosecutor HEAD NOTE: ?.Cases referred:
1. 1999(5)ALD162 1998(5)ALD2683 2010(1) ALD (CRL) 134(AP) 4 2012(2)ALD(CRL)941(AP) 5 (1999)7 SCC5106 AIR1992SC16047 1996 SCALE(1) SP3588 2004(3)KLT799SC HON'BLE SRI JUSTICE V.SURI APPA RAO CRL.A.No.646 OF2007DATE:
26. 11.2013 HON'BLE SRI JUSTICE V. SURI APPA RAO CRL.A.No.646 OF2007JUDGMENT
: Heard learned counsel for the appellant/complainant and learned Additional Public Prosecutor representing the State.
2. This criminal appeal is directed under Section 378 of the Code of Criminal Procedure against the judgment dated 14.06.2006 passed by the Metropolitan Sessions Judge, Visakhapatnam in Crl.A.No.34 of 2005, whereby the learned Sessions Judge reversed the finding of the II-Additional Chief Metropolitan Magistrate, Visakhapatnam and allowed the appeal filed by the accused and set aside the conviction and sentence passed against him by the trial Court in C.C.No.47 of 2001 for the offence under Section 138 of the Negotiable Instruments Act (for short ' the Act').
3. Assailing the judgment of the appellate Court, the complainant filed this appeal.
4. For the sake of convenience, the parties herein are referred to as arrayed in the trial Court i.e., II-Additional Chief Metropolitan Magistrate, Visakhapatnam.
5. The brief facts are as hereunder: On 19.05.1999, the accused borrowed a sum of Rs.2,00,000/- from the complainant by way of cash and on receiving cash, the accused executed a promissory note agreeing to pay interest @ 24% per annum. Thereafter, the accused issued a cheque for Rs.1,50,000/- on 23.09.2000 on demand made by the complainant drawn on Lakshmi Vilas Bank, Gajuwaka Branch, Visakhapatnam towards part payment of the principal amount and interest. The complainant presented the said cheque in the Bank of India, Suryabagh Branch, Visakhapatnam on 23.09.2000 and the same was returned on 26.09.2000 with an endorsement ".insufficient funds".. Thereafter, the complainant issued a statutory notice on 03.10.2000 to the accused and the notices were sent to three addresses i.e., office of the accused which is steel plant, to the house address of the accused and Ashray Hotel, Gajuwaka. It is averred that the accused managed the postal department and got the notices returned. Thereafter, the complainant, by invoking the provisions of Section 138 of the Negotiable Instruments Act, filed the complaint before the trial Court.
6. The complainant was examined as PW.1. He also examined PWs.2 and 3 and relied on Exs.P.1 to P.5. The respondent examined one B.S.R.Seshadri as DW.1 and marked Exs.C1 to C.4.
7. The trial Court considering the oral and documentary evidence adduced by both parties found the accused guilty for the offence punishable under Section 138 of the Negotiable Instruments Act, and sentenced him to undergo imprisonment for a period of two months and further directed to pay Rs.2,000/- towards compensation to the complainant under Section 357(3) of the Code of Criminal Procedure.
8. Aggrieved by the judgment of conviction and sentence passed against him, the accused preferred Crl.A.No.34 of 2005 before the appellate Court i.e. Metropolitan Sessions Judge, Visakhapatnam.
9. The learned Sessions Judge allowed the appeal and set aside the order of conviction and sentence passed by the trial Court against the accused.
10. Aggrieved by the judgment of acquittal by the Sessions Judge, the complainant filed this appeal.
11. Learned counsel for the complainant/appellant submitted that the leaned Sessions Judge acquitted the respondent/accused by reversing the findings of the trial Court on the sole ground that the complainant would have possibly managed the postal authorities for making the endorsement on Ex.P.5 postal covers under which the demand notice was sent to the accused, therefore, there was no notice of demand as contemplated under Section 138 of the Negotiable Instruments Act. It is further submitted that the observation of the appellate Court is that it is for the complainant to examine the postal authorities as against the established principles dealing with the burden of proof under the Indian Evidence Act and therefore, the impugned judgment of acquittal suffers from gross errors of law and is liable to be set aside and that the conviction and sentence passed by the trial Court, be restored.
12. Learned counsel for the complainant/appellant further submitted that as per Section 27 of the General Clauses Act, service shall be deemed to be effected by properly addressing pre-paying and posting by registered post unless the contrary is proved. The presumption being rebuttable, it is for the accused to rebut the said presumption and that the accused failed to rebut the presumption in this case by adducing necessary evidence. Therefore, the learned Sessions Judge was not justified in holding that the complainant failed to prove that he issued demand notice to the accused. In support of his contention, learned counsel for the appellant relied on the decision reported in APARNA AGENCIES, HYDERABAD v. P.SUDHAKAR RAO AND ANOTHER1, wherein it was held that: ".notice of dishonour sent to the drawer of the cheque to his correct address by registered post, and that the registered notice returned with an endorsement 'addressee out of station-door locked for seven days' and held that the notice is deemed to have been served on the addressee in view of the presumption under Section 27 of the General Clauses Act.".
13. In G.S.SRIKANTH, MD, TALVADI ROCKAND MINERAL PRODUCTS, MADRAS AND OTHERS v SRI LAKSHMI FINANCIERS AND OTHERS2 wherein it was held that: ".The notice alleged to have been sent by complainant by registered post to the accused but neither the returned cover nor the acknowledgment received back by the complainant filed. There is a presumption that the notice is duly served on the accused. But it is a rebuttable presumption and it is open too the accused to show that such notice has not at all been sent.".
14. Per contra, learned counsel for the respondent submitted that the complainant managed the postal authorities and got the endorsement on Ex.P.5 returned postal cover and that the addresses mentioned in the covers is different and that the very same person made the endorsement as 'door locked'. Therefore, the learned Sessions Judge rightly observed that the complainant failed to issue demand notice to the respondent/accused as contemplated under Section 138 of the Negotiable Instruments Act. It is further submitted that the respondent/accused is working in a Steel Plant, and, therefore, the question of door lock does not arise when the notice is addressed to the Steel Plant. The address mentioned in the second cover is Main Road, Gajuwaka, Visakhapatnam and the third cover is addressed to Chaitanyanagar, Old Gajuwaka, Visakhapatnam. Thus, the complainant had sent notices to different addresses. All these covers were returned with the same endorsement by the same person with an endorsement 'door locked'. That itself indicates that the complainant managed the postal authorities for making such endorsements and that he filed the complaint against the accused. In support of his contention, learned counsel for the respondent/accused relied on the judgment of learned single Judge of this Court reported in SABIKAR RAMCHANDER JI v STATE OF ANDHRA PRADESH AND ANOTHER3, wherein it was held that: ".The period of 15 days has to be calculated only from the date of receipt of said notice. Question of commencement of said period or its expiry does not arise when there is no receipt of notice at all. When expression used is 'receipt of notice', the same cannot be read as 'giving of notice'. In the above decision, the first demand notice sent on dishonour of cheque for reason of 'insufficient funds' was returned un-served with an endorsement 'door locked'. At the request of the accused, complainant presented the cheque again, but dishonoured on the same ground of 'insufficient funds'. Notice of demand was received, but no payment was made. Hence, the complainant filed the complaint. The trial Court acquitted the accused only on the ground that the complaint based on the second notice after the cheque was bounced for second time is not maintainable. This Court, therefore, held that the acquittal of the accused is not justified and the complaint is maintainable.
15. In A.BRAHMANANDA REDDY v STATE OF ANDHRA PRADESH AND ANOTHER4 wherein it is held that: ".service of notice on accused through professional courier service is valid service of notice under Section 138 of the Negotiable Instruments Act. Section 27 of the General Clauses Act has no application to a case of notice under Section 138 of the Negotiable Instruments Act since latter provision did not contemplate service of notice by 'post'. So, it is open for complainant to send notice for service by adopting any mode or means.".
16. It is the case of the complainant that the statutory notice dated 03.10.2000, as required under Section 138 of the Negotiable Instruments Act, has been sent to the respondent/accused to three addresses. It is also an admitted fact that the notices were sent to three addresses i.e., to the office address of the accused, Ashray Hotel, Gajuwaka and house address of the accused. The complainant, therefore, contends that the accused himself got managed the postal authorities to return the notice.
17. There is no dispute with regard to the dishonour of the cheque with an endorsement ".insufficient funds".. The only contention raised by the respondent/accused is that the statutory notice, as required under Section 138 of the Negotiable Instruments Act, has not been sent to him and that the complainant himself got managed the postal authorities and got the endorsement ".door locked".. It is also the contention of the respondent/accused that the door No.26-36-6 mentioned in the promissory note was fabricated in the year 1998, though the said door number is allotted in the year 1999. In support of his contention the accused examined DW.1, Senior Assistant of Gajuwaka Municipality, who stated in his evidence that 26-36-6 was standing in the name of Smt Malli Sarojini and allotted on 11.11.1999. Therefore, it is contended that the door number mentioned in Ex.P.1-promissory note in the year 1998 did not exist in the year 1998 and it was allotted in the year 1999. Therefore, it is contended by the respondent/accused that the complainant obtained blank promissory note from the accused and later filled up the promissory note. On this ground, also the complaint is liable to be dismissed.
18. Before the trial Court, the accused though contended that the complainant got managed the postal authorities and got the notices returned as door locked, the complainant has failed to examine any postal authorities to prove the said endorsement. As seen from Ex.P.5-returned postal cover, the same was returned to the complainant with an endorsement 'not claimed, hence returned to the sender', but not with an endorsement 'door locked', as contended by the accused. The said notice is addressed to the door No.26-36-6, Chaithanyanagar, Gajuwaka, Visakhapatnam as was mentioned in Ex.P.1-promissory note.
19. Under the provisions of Section 138 of the Negotiable Instruments Act, if payee has despatched the notice sent to the correct address of the drawer, before the expiry of 15 days after dishonour of the cheque it can recorded that he made demand of notice within statutory period. Admittedly, the respondent/accused is working in Steel Plant. Therefore, the complainant has chosen to issue notice to the Steel Plant address also. Later, he also issued notice to the address mentioned in the promissory note. Generally, the address in the promissory note will be mentioned as per the information furnished by the borrower.
20. In K.BHASKARAN v SANKARAN VAIDHYAN BALAN AND ANOTHER5 wherein it is held that: ".failure on the part of the drawer to pay the amount should be within fifteen days of the receipt of the said notice. Giving notice in the context is not the same as receipt of notice. 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 the correct address and for the drawer to comply with Clause (c) of the proviso. Emphasizing that the provisions contained in Section 138 of the Act required to be construed liberally, it was observed thus: 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 on 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. Section 27 of the General Clauses Act, 1897 gives raise to a presumption that service of notice has been sent effected when it is sent to the correct address by registered post. When a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, 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.
21. The Supreme Court in JAGDISH SINGH v NATTHU SINGH6 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. The Apex Court also held the same view in STATE OF M.P. v HIRALAL AND OTHERS7, AND V.RAJA KUMARI v. P.SUBBARAMA NAIDU AND ANOTHER8.
22. From the above decisions of the Supreme Court reported supra, it is clear that when a notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of Clause (b) of proviso to Section 138 of the Act stands complied with. Then, it is for the drawer to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the cover was incorrect or that the letter was never tendered or that the report of the postman was incorrect.
23. In the instant case, the accused contended that the complainant got managed the postal authorities and got the endorsement. On the other hand, the complainant contended that the accused managed the postal authorities and got returned the notice to avoid payment. It is also contended that a person, who does not pay amount, within time stipulated as per the provisions of Section 138 of the Act, he cannot obviously contend that there was no proper service of notice as required under Section 138 of the Negotiable Instruments Act, by ignoring statutory presumption to the contrary under Section 27 of the General Clauses Act and Section 114 of the Evidence Act. In this case, the endorsement on Ex.P.5 clearly indicates that the complainant sent notice to the accused to the address mentioned in the promissory note executed by the accused. Probably, the accused must be knowing about the change of door number and got mentioned the same in the promissory note executed by him. If at all the door number is not existing in the year 1998, he would have raised objection for the same being mentioned in the promissory note or he would have given suitable notice to the complainant stating that he has obtained blank promissory note and got mentioned door number subsequently. In Ex.P.5 cover, it is clearly mentioned as 'not claimed, hence returned to the sender'. It is for the accused to rebut the presumption by adducing evidence that the notice was never tendered and that the report of the postman was incorrect.
24. In view of the above, it is clear that the complainant has despatched notice to the correct address of the accused and thus complied with the statutory provision under Section 138-B of the Negotiable Instruments Act. The accused did not dispute the correctness of the address mentioned on the envelopes and received the court summons to the address at the door No.23-36-6. Thus, the complainant would be able to prove that the drawer of the cheque knew about the notice issued to him and deliberately avoided service of notice and got false endorsement only to defeat the claim. The trial Court considering provisions of Section 20 of the Act, after appreciating the entire evidence on record and after relying on the decisions, rightly, found the guilt of the accused under Section 138 of the Negotiable Instruments Act. Therefore, the finding of the learned Metropolitan Sessions Judge that it is for the complainant to examine the postman concerned to prove the endorsement on Ex.P.5 is erroneous. When the evidence on record clearly indicates that the accused not claimed, it was returned to the sender, therefore, the finding of the Metropolitan Sessions Judge that the complainant has failed to prove that he issued demand notice to accused is contrary to the evidence on record and is, therefore, liable to be set aside.
25. Accordingly, the appeal is allowed, setting aside the judgment of acquittal dated 14.06.2006 recorded by the Metropolitan Sessions Judge, Visakhapatnam in Crl.A.No.34 of 2005 and the judgment dated 06.06.2005 passed by the II-Additional Chief Metropolitan Magistrate, Visakhapatnam in C.C.No.47 of 2001 is restored. V.SURI APPA RAO, J ________________ Date:
26. 11.2013