Judgment:
N.K. Mody, J.
1. Being aggrieved by the judgment dated 30-10-02 passed by Sessions Judge, Mandsaur in Cr. A. No. 180/02 whereby the judgment dated 4-9-02 passed by CJM, Mandsaur in Criminal Case No. 997/99, whereby the respondent No. 1 was convicted for an offence punishable under Section 138 of Negotiable Instruments Act (which shall be referred hereinafter as 'NI Act') and was sentence to undergo for a period of six months' RI with fine of Rs. 1,00,000/- was set aside, the present appeal has been filed.
2. Short facts of the case are that the appellant filed a complaint on 22-3-99 alleging that the respondent No. 1 purchased motor pipe and other fitting materials from the appellant on 21-7-98 of which the bill was issued by the appellant. It was alleged that the bill was duly signed by respondent No. 1 and a cheque dated 1-9-98 of District Co-operative Central Bank, Mandsaur was issued by the respondent No. 1. It was alleged that appellant submitted the cheque through its banker State Bank of Indore, Branch Mandsaur, for collection but the same was returned on 11-2-99 with a memorandum of the Bank to the effect 'Stop Payment'. It was alleged that a notice was issued to the respondent No. 1. On 23-2-99 by UPC as well as by registered post but inspite of that neither the cheque amount was paid nor the notice was replied, hence complaint was filed with a prayer that the respondent No. 1 be convicted. After taking cognizance the learned Trial Court issued notice to the respondent No. 1. After framing of charge and recording of evidence respondent No. 1 was convicted as stated above. In appeal filed by the respondent No. 1 the judgment passed by the learned Trial Court was set aside and the respondent No. 1 was acquitted, against which present appeal has been filed.
3. Learned Counsel for the appellant argued at length and submits that the impugned judgment passed by the learned Appellate Court is illegal and deserves to be set aside. It is submitted that the only responsibility of the appellant was to issue notice on the permanent address of respondent No. 1. It is submitted that learned Appellate Court has acquitted the respondent No. 1 on the ground that the appellant himself has admitted that the notice was not served on the respondent No. 1. It is submitted that efforts were made by the appellant to serve the respondent and even if it is assumed that respondent No. 1 was not served, then too, respondent No. 1 was liable to be convicted. It is submitted that appeal filed by the appellant be allowed and the impugned judgment passed by the learned Appellate Court be set aside.
4. Learned Counsel for respondent No. 1 submits that since the notice was not duly served on the respondent No. 1 and it is pre-requisite condition as the appellant intends to send the respondent No. 1 behind the bar, therefore, no cause of action accrued to appellant to file the complaint. It is submitted that learned Trial Court has wrongly convicted the respondent No. 1, which has rightly been set aside by the learned Appellate Court. It is submitted that the appeal filed by the appellant is without any merits, hence the same be dismissed.
5. From perusal of the record, it is evident that the notice was issued by the appellant on 23-2-99 by registered post acknowledgment due. The registered envelop shows the endorsement of Postman to the effect that Postman has visited the house of respondent No. 1 on 25-2-99, 26-2-99, 27-2-99, 28-2-99 and 3-3-99 and has put a remark that the addressee was not available at the time of distribution of letter. Registered letter is Exh. P-5 which bears address to the effect 'Gafur s/o Ghisa Ji Ajmeri, (Ex-Sarpanch), Semly, Post Masia Kher Khedi, District Mandsaur'. Exh. P-8 is another registered letter which was sent to the respondent No. 1 where the address of the respondent No. 1 is mentioned as Gram Digaon , Post Digaon, District Mandsaur. It also bears postal endorsement which indicates that Postman has visited the house on 24-2-99 and 1-3-99 and has put the remark to the effect 'not found' and lastly it was returned with endorsement of the Postman that respondent is not available at the time of delivery. Exh. P-9 is receipt of Under Postal Certificate, which goes to show that notice was also sent Under Certificate of Posting.
6. In the matter Madan and Co. v. Wazir Jaivir Chand : AIR 1989 SC 630, Hon'ble Apex Court has held that notice sent through registered post on correct address, for non-availability of addressee is not responsibility of sender or postman to arrange that notice is served. In the matter of K. Bhaskaran v. Shankaran Vaidhyan Balan 1999 Cr.LJ 4606, Hon'ble Apex Court has held that the offence under Section 138 of NI Act is complete on failure of drawer to pay cheque amount within 15 days from date of giving notice. Notice sent by post returned by accused 'unclaimed'. Notice is presumed to have been served and in case of failure of accused to rebute presumption, accused is guilty of offence under Section 138 of NI Act. In the matter of D. Vinod Shivappa v. Nanda Belliappa 2006 (2) NIJ 210 (SC), Hon'ble Apex Court has held that in a case where complainant proves that drawer of the cheque know about the notice, deliberately evaded service and got a false endorsement made only to defeat the process of law, the Court shall presume service of notice. Hon'ble Apex Court has further observed that the drawer can also establish by evidence that the said endorsement of 'refusal' or 'unclaimed' or 'not found' to be false. In the matter of Indo Automobiles v. Jai Durga Enterprises 2008 (2) NIJ 446 (SC), Hon'ble Apex Court has held that it is well settled that once notice has been sent by registered post with acknowledgment due on a correct address, it must be presumed that the service has been made effective. In the matter of First Elearning Quest Private Ltd. v. Tera Construction Private Ltd. 2009 (1) NIJ 103 (Del) (NOC), Hon'ble Apex Court held that it is well settled that if a notice is dispatched under certificate of posting with correct address of drawer written on it, presumption of service of notice arises.
7. It is not the case of the respondent No. 1 that the address written on Exhs. P-5, P-8 and P-9 is not correct. Appellant has sent the notice by registered post acknowledgment due and also Under Certificate of Posting on two address. Respondent is Ex-Sarpanch of the village. The endorsement of the Postman is that respondent No. 1 was not available at the time of delivery. Since the appellant has issued the notice, not only by registered post but also by UPC and the registered notice has returned with remark that the respondent No. 1 was not found at the time of delivery, presumption ought to have been drawn in favour of appellant.
8. In the facts and circumstances of the case, learned Sessions Court committed error in allowing the appeal filed by the respondent No. 1 and acquitting the respondent No. 1. In view of this, appeal filed by the appellant is allowed and the judgment dated 30-10-02 passed by Sessions Judge, Mandsaur in Criminal Appeal No. 180/02 is set aside and the judgment dated 4-9-02 passed by learned CJM, Mandsaur, in Criminal Case No. 997/99 is restored.
With the aforesaid observations, petition stands disposed of.
C.C. as per rules.