CRL.A/38/1996 of M.P.BALAN Vs PULIKKAL MOHANAN on 12 December 2005

JUDGMENT

The appellant filed a complaint before the Judicial Magistrate of FirstClass, Kozhikode alleging offence under Section 138 of the NegotiableInstruments Act (`N.I.Act', for short). As per the allegations in the complaintissued cheque dated 10.8.1990 drawn on his account in the Vysya Bank Ltd. foran amount of Rs.25,000/- in discharge of a debt which he owed to complainant.The cheque, when presented for encashment through the Dhanalakshmi BankLtd., was returned unpaid on 13.8.1990, since funds were insufficient. A noticewas sent to the accused through a lawyer on 20.8.1990. But it wasundelivered with the endorsement that the drawer did not come and collect thearticle in spite of being told to do so. Therefore, another notice was issueddemanding cash payment. On 31.8.1990 the notice was received by the accusedon 10.9.1990. But no payment was made within 15 days and hence a complaintwas filed on 8.10.1990.

2. PW1 was examined, Exhibits P1 to P4 series were marked on the sideof the appellant. The accused did not adduce any evidence. The trial courtconvicted and sentenced the first respondent to undergo simple imprisonmentfor three months. The first respondent was further ordered to pay a sum ofRs.25,000/- to PW1 as compensation under Section 357(3) Cr.P.C. and indefault, to undergo simple imprisonment for three months. The said convictionand sentence were challenged by the first respondent before the Sessions Court.

3. The learned Sessions Judge found that the finding of the learnedMagistrate that Exhibit P1 was issued by the first respondent and it wassupported by consideration was correct. It was also held that there wassufficient evidence to prove that cheque was issued in discharge of the liability.

But it was held that the complaint is barred by limitation, since the secondnotice was admittedly issued by the complainant-appellant beyond the period of15 days from the date of return of the cheque, i.e., 13.8.1990. The second noticewas issued on 31.8.1990. The learned appellate Judge found that accordingto the proviso to Section 138 of N.I.Act, a notice has to be issued within 15days from the date of return of the cheque. But the second notice was issued onlyafter 15 days and that is why the complaint was found to be time barred.

4. It is clear from the findings and observations of the learnedSessions Judge that the court was entering a finding with respect to the issuanceof notice and the period of limitation with respect to the date on which the secondnotice was sent (Exhibit P4 series). The memo issued from the bank dated11.8.1990 was received by the complainant on 13.8.1990 and since the secondnotice was issued only on 31.8.1990, it was not sent within 15 days of thereceipt of information by him from the bank regarding the turn of the cheque asunpaid. The complainant averred in the complaint filed by him that he hadreceived memo from the bank on 13.8.1990 and he also produced the same asExhibit P2 series and also averred that a notice was issued to the firstrespondent demanding cash payment on 20.8.1990. The said notice along withthe postal receipt are marked as Exhibit P3 series. The postal endorsement andthe copy of the lawyer notice will go to show that a notice was issued to the firstrespondent demanding payment of money covered by Exhibit P1 as early as on20.8.1990, i.e., within seven days from the date of receipt of memo from thebank.

5. Exhibit P3 series shows that as per the postal endorsement, a notice wassent to the accused-first respondent as early as on 20.8.1990 which is wellwithin the time stipulated in proviso (b) to Section 138 of N.I.Act. But this factwas not taken into account by the court below. It is well settled that as perSection 138 of N.I.Act, the complainant has only to make a demand by "giving a notice" in writing to the accused. It is for the payee to perform the process of"giving" notice by sending the notice to the drawer in the correct address. Section138 of the N.I.Act does not even require that the notice should be given onlyby post. The principles incorporated in Section 27 of the General Clauses Act ifapplied would lead to the inference that if notice is issued by post in the correctaddress, it can be deemed to have been served on the sendee, unless he provesthat it was not really served and that he was not responsible for such non-service. This position is well settled by the Supreme Court in the decisionreported in K.Bhaskaran v.Sankaran Vaidhyan Balan (AIR 1999 SC 3762).

5. Therefore, the burden of the complainant is only to prove before thecourt that a notice was sent as required under Section 138(b) of the N.I.Act tothe drawer of the cheque within 15 days of the receipt of information by himfrom the bank regarding the return of cheque as unpaid. The appellant in thiscase has produced the postal receipt and also copy of notice which prima facieevidences that a notice was sent as early as on 20.8.1990, ie., within the timestipulated under Section 138(b) of N.I.Act. If as a matter of fact the accused-first respondent has a case that the notice was not served on him and that he wasnot responsible for such non-service, the burden is on the first respondent toestablish this fact. The primary burden on the complainant will bedischarged by producing sufficient materials to show that a notice was sent to theaccused within 15 days of receipt of the memo from the Bank.

6. In this case the accused has no case that no notice as evidenced byExhibit P2 series was not sent to him at all. He has not challenged this aspectin the cross-examination. The only answer elicited from PW1 was that he didnot know what happened to the notice sent on 20.8.1990. PW1 has stated in thechief-examination that a notice was sent to the accused on 20th and producedExhibit P2 series also and gave evidence that the notice was returned asunserved. The appellant having proved that a notice was sent as evidenced by

postal endorsement in the absence of any challenge on the correctness of theaddress in which the notice was served and the date on which the notice was sentas evidenced by Exhibit P2 series, the first respondent cannot be said to havedischarged his burden by merely putting a question and eliciting an answer thatPW1 did not know as to what happened to the notice sent on 20.8.1990. Theappellant has prima facie established that a notice was sent on 20.8.1990 within15 days of receipt of the memo from the bank well within the time referred to inSection 138(b) of N.I.Act. But the first respondent has no case that the noticewas not sent in correct address, nor he was not responsible for the non serviceor that it was not really served on him. In such circumstances, the notice can beheld to have been served on the sendee.

7. Learned Sessions Judge has taken only the date of issuance of secondnotice and the receipt of the same as the relevant date for computing whether therewas compliance of Section 138(b) of N.I.Act. In the light of the dictum laid downin the Supreme Court decision cited above, this finding cannot be sustained.However, on going through the records in this case, I find that it is a fit casewhere the accused should be given an opportunity to rebut the evidence given bythe complainant on this aspect. The evidence was adduced as early as on16.10.1992 at a time when the legal position was not clarified. That apart,learned counsel appearing for the appellant submitted that this is a genuine casewhere he would be able to produce even evidence from the Post Office toprove the date of receipt of notice by the accused. No evidence is forthcomingregarding the date on which Exhibit P3 series was served on the accused. Itis necessary that an opportunity should be given to both sides to adduceevidence on the relevant aspect. Hence the order acquitting the accused has tobe set aside and the matter is to be remanded for fresh consideration and disposalin accordance with law.

The order under challenge is, therefore, set aside. The case is remandedto the trial court for fresh consideration and disposal in accordance with theobservations made in this judgment. The trial court will dispose of the case withintwo months from the date of receipt of a copy of this judgment.

The Criminal Appeal is partly allowed.

vgs.

K.HEMA, JUDGE

CRL.A.38/96

K.HEMA,J. ------------------------------CRL.A.NO.38 OF 1996 ------------------------------

JUDGMENT

12.12.2005