Pradeep Dewangan v. M/s Jai Vijay Textiles

Judgment

#1. The present criminal revision under Section 397 and 401 of the Code of Criminal Procedure, 1973, has been filed by the applicant against the impugned judgment dated 26-10-2018, passed by the learned 6 th Additional Sessions Judge, Raipur, in Criminal Appeal No.215 of 2018 whereby the criminal appeal filed by the applicant is dismissed and the judgment of conviction and sentence dated 25-06-2018 passed by learned Judicial MOHAMMED AADIL KHAN Magistrate First Class, Raipur in Criminal Case No.592 of 2011, convicting 2 and sentencing the applicant for the offence under Section 138 of the Negotiable Instruments Act, 1881 (in short “NI Act”), is affirmed.

#2. The brief facts of the case are that, the applicant was an accused in Criminal Case No.592 of 2011, initiated by the Respondent No.1/complainant, for the offence under Section 138 of the NI Act. It is alleged in the complaint that the Respondent No.1/complainant is having clothes business, and the applicant/accused had purchased clothes from the complainant. In lieu of its sale consideration, the applicant/accused had issued a cheque of Rs.70,086/-, which was of Indira Priyadarshini Mahila Nagarik Sahakari Bank Maryadit, Lohar Chowk, Purani Basti, Raipur, cheque No. 202649, dated 15- 06-2006, and given it to the complainant. When the complainant deposited the said cheque in his bank account for its clearance, the same was dishonoured byy the payee bank on 22-06-2006 on the ground of “Payment Stopped by the drawer”. The complainant served a legal demand notice to the applicant/accused on 04-07-2006, which was refused by the applicant/accused on 17-07-2006. Then the complaint case under Section 138 of the NI Act has been filed by the complainant before the learned trial Court.

#3. The complaint case was registered on 19-09-2006, and summons was issued to the applicant/accused. The details of the offence were explained to the applicant/accused on 30-05-2007. The evidence of the complainant was recorded, statement under Section 313 of the Cr.P.C. of the accused was also recorded, and the accused has also examined his witnesses in defence. After appreciation of the evidence available on record, on 25-06-2018, the

learned trial Court convicted the accused for the offence under Section 138 of the NI Act, and sentenced him till the rising of the Court and compensation of Rs.95,000/-, which is payable to the complainant. Failing which, the accused shall undergo further Simple Imprisonment of one month. 3

#4. The judgment of conviction and sentence dated 25-06-2018 was challenged by the accused before the learned appellate court in Criminal Appeal No.215 of 2018, which is dismissed by the appellate Court vide its judgment dated 26-10-2018. Hence this criminal revision.

#5. Learned counsel for the applicant/accused would submit that the complainant has failed to establish that there exists a legally recoverable debt, and the cheque was issued for the discharge of any liability against him. The legal demand notice was not served upon the accused, and it is the burden of the complainant to prove that the legal demand notice was duly served upon the accused. He would further submit that the complainant has failed to produce any bills or vouchers of the shop from which the clothes are said to have been purchased by the accused. The complainant has failed to discharge his initial burden to prove the transaction between the parties by leading cogent evidence. The learned appellate Court has also committed an irregularity and illegality by not considering the defence of the accused and the evidence led by him. In the absence of any cogent and sufficient evidence, no presumption can be drawn against the applicant/accused. Due to the dispute between the parties, the payment of the cheque was stopped by the drawer/accused, and therefore, the offence of Section 138 of the NI Act is not attracted. Therefore, the criminal revision may be allowed, and the impugned judgment of conviction and sentence passed by the learned trial Court as well as the appellate Court may be set aside.

#6. Per contra, learned counsel appearing for the Respondent No.1/complainant supported the impugned judgment passed by the learned trial Court and the appellate Court and would submit that from the evidence produced by the complainant, the offence of Section 138 of the NI Act is clearly made out, there is statutory presumption in favour of the complainant who is the holder of cheque in due course, and the learned Courts below have rightly convicted and sentenced the accused, which is not required to be interfered with. 4

#7. I have heard learned counsel for the parties and perused the records of the trial Court as well as the appellate Court.

#8. Section 118 of the N.I. Act provides presumption as to negotiable instruments until contrary is proved, which reads as under:- “118. Presumptions as to negotiable instruments.—Until the contrary is proved, the following presumptions shall be made:— of consideration —that every negotiable instrument was made (a) 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; as to date —that every negotiable instrument bearing a date (b) was made or drawn on such date; as to time of acceptance —that every accepted bill of (c) exchange was accepted within a reasonable time after its date and before its maturity; as to time of transfer —that every transfer of a negotiable (d) instrument was made before its maturity; (e) as to order of indorsements —that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; as to stamps —that a lost promissory note, bill of exchange or (f) cheque was duly stamped; that holder is a holder in due course —that the holder of a (g) negotiable instrument is a holder in due course: Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.”

#9. Section 139 of the N.I. Act provides presumption in favour of holder which reads as under:- “139. Presumption in favour of holder.─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 whole or in part, of any debt or other liability.”

#10. When the cheque was drawn by a person on account maintained by him for payment of any amount to another person for discharge of his liability is 5 returned by the bank unpaid because of insufficient balance in the bank account or for any other reason, like payment stopped by the drawer, signature is not matched, the cheque is out of the date, other discrepancies in its words, etc., such person shall be deemed to have committed the offence and shall be liable to be punished. Section 138 of the NI Act provides that a cheque has to be presented to the bank within a period of six months from the date on which it is drawn or within a period of its validity, whichever is earlier. The period of six months has been reduced by the Reserve Bank of India to three months vide its notification dated 04-11-2011 w.e.f. 01-04-2012. After receipt of the information by the complainant from the bank regarding return of cheque as unpaid he has to serve a legal demand notice in writing to the drawer of the cheque within 30 days of receipt of such information and then the drawer of the cheque shall pay the amount of cheque within 15 days of receipt of said notice. Section 142 of the N.I. Act provides for cognizance of the offences which provides that the Court may take cognizance of the offence punishable under Section 138 of the N.I. Act upon complaint in writing made by the payee or the holder in due course of the cheque within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138 of the N.I. Act. Section 9 of the N.I. Act gives definition of holder in due course which reads as under:- “9. “Holder in due course”.─“Holder in due course” means any person who for consideration became the possessor of a promissory note, bill of exchange or cheque if payable to bearer, or the payee or indorsee thereof, if payable to order, before the amount mentioned in it became payable, and without having sufficient cause to believe that any defect existed in the title of the person from whom he derived his title.”

#11. It is the case of the complainant that the accused had purchased clothes from his shop, and in lieu of its sale consideration, the subject cheque was 6 issued in his favour by the accused. He produced the registration certificate of his firm, Ex. P-1 and the extract of the account book of his firm with respect to the outstanding amount against the accused Ex. P-2. The total of Rs. 70,116/- is shown to be outstanding in the account book of the complainant against the accused, out of which, he issued a cheque of Rs.70,086/- to the complainant. In the cross-examination of P.W.1, Shivraj Begani, the accused had given a suggestion that he had given the subject cheque to one Subhash Jain, which the P.W. 1 has denied. Although, the P.W.1 has stated in his evidence that at the time when the cheque was given to him by the accused, the sale-purchase transaction was stopped, however, the accused could not deny that there was no transaction ever. The person, Mr. Subhash Jain, has not been examined by the accused in his favour so as to hold that the subject cheque was actually given to Mr. Subhash Jain. Even the defence witnesses D.W.1 Ajeet Kumar and D.W.2 Pradeep Dewangan (accused) have stated that the cheque was given to Mr. Subhash Jain, but he has not been examined. In the evidence, the defence witness No. 1 has also admitted that there was a sale-purchase transaction of clothes between the complainant and the accused.

#12. In the matter of D.K. Chandel Vs. Wockhardt Limited and another, (2020) 13 SCC 471 the Hon’ble Supreme Court has held in para 7 of its order that :- “7. As held by the trial Court as well as by the High Court that the cheque was issued towards the amount due and payable by the appellant for purchase of pesticides. As rightly observed by the High Court, production of the account books/cash book may be relevant in the civil court but may not be so in the criminal case filed under Section 138 of the NI Act. This is because of the presumption raised in favour of the holder of the cheque. In view of the concurrent findings recorded by the trial court as well as by the High Court, we do not see any ground 7 warranting interference with the conviction of the appellant under Section 138 of the NI Act.”

#13. In the matter of P. Rasiya Vs. Abdul Nazer and another, 2022 SCC OnLine SC 1131 it has been held by the Hon’ble Supreme Court in para 7 of the order passed in the above matter that the complainant is not required to show nature of transaction or source of fund, which is reproduced hereinbelow:- “7. Feeling aggrieved and dissatisfied with the judgment and orders passed by the Appellate Court affirming the conviction of the accused under Section 138 of the N.I. Act, the accused preferred three different Revision Applications before the High Court. By the impugned common judgment and order, the High Court has reversed the concurrent findings recorded by both the courts below and has acquitted the accused on the ground that, in the complaint, the Complainant has not specifically stated the nature of transactions and the source of fund. However, the High Court has failed to note the presumption under Section 139 of the N.I. Act. As per Section 139 of the N.I. Act, 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 discharge, in whole or in part, of any debt or other liability. Therefore, once the initial burden is discharged by the Complainant that the cheque was issued by the accused and the signature and the issuance of the cheque is not disputed by the accused, in that case, the onus will shift upon the accused to prove the contrary that the cheque was not for any debt or other liability. The presumption under Section 139 of the N.I. Act is a statutory presumption and thereafter, once it is presumed that the cheque is issued in whole or in part of any debt or other liability which is in favour of the Complainant/holder of the cheque, in that case, it is for the accused to prove the contrary. The aforesaid has not been dealt with 8 and considered by the High Court. The High Court has also failed to appreciate that the High Court was exercising the revisional jurisdiction and there were concurrent findings of fact recorded by the courts below.”

#14. In the matter of M. Abbas Haji Vs. T.N. Channakeshava, (2019) 9 SCC 606 the Hon’ble Supreme Court has held that it is for the accused to explain as to how his cheque entered into hands of the complainant wherein para 6 of the judgment it has been observed that:- “6. It is urged before us that the High Court overstepped the limits which the appellate court is bound by criminal cases setting aside an order of acquittal. Proceedings under Section 138 of the Act are quasi-criminal proceedings. The principles, which apply to acquittal in other criminal cases, cannot apply to these cases. As far as the present case is concerned, in addition to three reasons, given by the High Court, we are of the view that the original appellant has not even explained how the leaves of the cheque entered into the hands of the complainant. It is urged that in cross-examination of the complainant some suggestions were made that since the complainant was visiting the office of the original appellant, he had access to the same. The complainant had only admitted that he visited the office of the original appellant but he denied all the other suggestions. Thereafter, it was for the original appellant to prove his part of the case. The High Court, in our opinion, was right in holding the original appellant guilty under Section 138 of the Act.”

#15. In the matter of Modi Cements Ltd. Vs. Kuchil Kumar Nandi, (1998) 3 SCC 249 the Hon’ble Court has held in para 16 to 18 that:- “16. We see grate force in the above submission because once the cheque is issued by the drawer a presumption under Section 139 must follow and merely because the drawer issues a notice to the drawer or to the Bank for stoppage of the payment it will not preclude an action under Section 138 of the Act by the drawer or the holder of a cheque in 9 due course. The object of Chapter XVII, which is intituled as "OF PENALTIES IN CASE OF DISHONOR OF CERTAIN CHEQUES FOR INSUFFICIENCY OF FUNDS IN THE ACCOUNTS" and contains Sections 138 to 142, is to promote the efficacy of banking operations and to ensure credibility in transacting business through cheques. It is for this reason we are of the considered view that the observations of this Court in Electronics Trade & Technology Development Corpn. Ltd1 in para 6 to the effect "Suppose after the cheque is issued to the payee or to the holder in due course and before it is presented for encashment, notice is issued to him not to present the same for encashment and yet the payee or holder in due course presents the cheque to the bank for payment and when it is returned on instructions. Section 138 does not get attracted", does not fit in with the object and purpose for which the above chapter has been brought on the Statute Book.

#17. The above view had been referred to in K.K. Sidharthan2 as is clear from Paras 5 and 6 of the judgment. Paras 5 and 6 read as under:- "5. The above apart, through in the aforesaid case this Court held that even "stop payment" instruction would attract the mischief of Section 138, it has been observed in para 6, that if "after the cheque is issued to the payee or to the holder in due course and before it is presented for encashment, notice is issued to him not to present the same for encashment and yet the payee or holder in due course present the cheque to the bank for payment and when it is returned on instruction, Section 138 does not get attracted".

#6. From the facts mentioned above. We are satisfied that in the present case cheques were presented after the appellant had directed its bank to ‘stop payment’. We have said so because though it has been averred in the complaint that the cheque dated 10-10-1994 was presented for collection on that date itself through the bank of the respondent which is Catholic Syrian Bank Ltd., from the aforesaid letter of the Indian Overseas Branch, we find that the cheque was presented on 15.10.1994 (in clearing). The lawyer's notice to the respondent being of 4th October, which had been replied on 12th from Cochi, which is the place of the respondent, whereas the Advocate who issued notice on behalf of the appellant 1 2 (1996) 2 SCC 739 (1996) 6 SCC 369 10 was at Thrissur, it would seem to us that the first cheque had even been presented after the instruction of ‘stop payment’ issued by the appellant had become known to the respondent’. With the above observations, the complaint under Section 138 of the (emphasis supplied) Act was quashed.

#18. The aforesaid propositions in both these reported judgments, in our considered view, with great respect are contrary to the spirit and object of Sections 138 and 139 of the Act. If we are to accept this proposition it will make Section 138 a dead letter, for, by giving instructions to the Bank to stop payment immediately after issuing a cheque against a debt or liability the drawer can easily get rid of the penal consequences notwithstanding the fact that a deemed offence was committed. Further the following observations in para 6 in Electronics Trade & Technology Development Corpn. Ltd.1 (SCC p.742). "Section 138 of the Act intended to prevent dishonesty on the part of the drawer of negotiable instrument to draw a cheque without sufficient funds in his account maintained by him in a bank and induce the payee or holder in due course to act upon it. Section 138 dress presumption that one commits the offence if he issues the cheque dishonestly" (emphasis supplied) in our opinion, do not also lay down the law correctly.”

#16. In the matter of Laxmi Dyechem Vs. State of Gujarat and others, (2012) 13 SCC 375 the Hon’ble Court has held in para 16 that:- “16. The above line of decisions leaves no room for holding that the two contingencies envisaged under Section 138 of the Act must be interpreted strictly or literally. We find ourselves in respectful agreement with the decision in Mgma case [(2010) 11 SCC 441] that the expression “amount of money … is insufficient” appearing in Section 138 of the Act is a genus and dishonour for reasons such “as account closed”, “payment stopped”, “referred to the drawer” are only species of that genus. Just as dishonour of a cheque on the ground that the account has been closed is a dishonour falling in the first contingency referred to in Section 138, so also dishonour on the ground that the “signatures do not match” or that the “image is not found”, which too 11 implies that the specimen signatures do not match the signatures on the cheque would constitute a dishonour within the meaning of Section 138 of the Act: xxxxxx xxxxxx xxxxxx

#17. In the case at hand, the High Court relied upon a decision of this Court in Vinod Tanna case [Vinod Tanna v. Zaher Siddiqui, (2002) 7 SCC 541] in support of its view. We have carefully gone through the said decision which relies upon the decision of this Court in Electronics Trade & Technology Development Corpn. Ltd. [Electronics Trade & Technology Development Corpn. Ltd. v. Indian Technologies and Engineers (Electronics) (P) Ltd., (1996) 2 SCC 739]. The view expressed by this Court in Electronics Trade & Technology Development Corpn. Ltd. (supra) that a dishonour of the cheque by the drawer after issue of a notice to the holder asking him not to present a cheque would not attract Section 138 has been specifically overruled in Modi Cements Ltd. Case [Modi Cements Ltd. v. Kuchil Kumar Nandi, (1998) 3 SCC 249]. The net effect is that dishonour on the ground that the payment has been stopped, regardless whether such stoppage is with or without notice to the drawer, and regardless whether the stoppage of payment is on the ground that the amount lying in the account was not sufficient to meet the requirement of the cheque, would attract the provisions of Section 138.”

#17. In the matter of HMT Watches Limited Vs. M.A. Abida and another, (2015) 11 SCC 776 the Hon’ble Supreme Court has held in para 14 that:- “14. Lastly, it is contended on behalf of Respondent 1 that it was not a case of insufficiency of fund, as such, ingredients of offence punishable under Section 138 of the NI Act are not made out. We are not inclined to accept the contention of learned counsel for Respondent 1. In this connection, it is sufficient to mention that in Pulsive Technologies (P) Ltd. v. State of Gujarat [(2014) 13 SCC 18], this Court has already held that instruction of "stop payment" issued to the banker could be sufficient to make the accused liable for an offence punishable under Section 138 of the NI Act. Earlier also in Modi Cements Ltd. v. Kuchil Kumar Nandi [(1998) 3 SCC 249], this Court has clarified that if a cheque is dishonoured because of stop payment instruction even then offence punishable under Section 138 of the NI Act gets attracted.” 12

#18. The further submission of the applicant/accused is that the legal demand notice was not served upon him, and therefore, no cause of action was accrued in favour of the complainant. In the present case, the complainant has averred that the subject cheque was dishonoured by the payee bank on 22-06-2006, and he served a legal demand notice to the accused on 04-07- 2006 through Regd. A.D. post. He produced a copy of the legal demand notice, Ex. P-6, its postal receipt Ex. P-7, and the envelop which is refused by the accused Ex. P-8, having the endorsement of the postal department, that despite giving intimation, he has not claimed, and it is returned.

#19. It is nowhere mentioned that the complainant has to prove the service of notice upon the accused. From perusal of proviso (b) of Section 138 of the N.I. Act it is only provided that the payee or holder in due course of the cheque has to make demand by giving notice in writing to the drawer of the cheque. The only giving notice in writing is provided. In the present case, by the document copy of legal demand notice, Ex. P-6, its postal receipt Ex. P-7 and the envelop which is refused by the accused Ex. P-8 it has been proved by the complainant that he gave the notice in writing to the accused and sent it through the registered A/D post. Section 27 of the General Clauses Act, 1897 provides meaning of service by post which reads as under:- "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 times at which the letter would be delivered in the ordinary course of post." 13

#20. If the complainant has sent a notice in writing through registered A/D post on the correct address of the accused it shall be presumed that it has been served upon him unless contrary is proved. From the documents Ex. P-6 and Ex. P-7 when it is proved by the complainant that he sent the legal demand notice on the correct address of the applicant/accused then the burden shifts upon the applicant/accused to prove that he has not received any notice sent by the complainant.

#21. In view of the aforesaid discussion, the case of the complainant does not suffers from any infirmity or illegality as the complainant has duly served the legal demand notice to the applicant/accused by sending it in his address through registered A/D post.

#22. In the matter of Ajeet Seeds Limited Vs. K. Gopala Krishnaiah, (2014) 12 SCC 685 in which in para 9 and 10 the Hon’ble Supreme Court has held that:- “9. This Court then explained the nature of presumptions under Section 114 of the Evidence Act and under Section 27 of the GC Act and pointed out how these two presumptions are to be employed while considering the question of service of notice under Section 138 of the NI Act. The relevant paragraphs read as under: (C.C Alavi Haji case (2007) 6 SCC 555) “13. According to Section 114 of the Act, read with Illustration (f) thereunder, when it appears to the court that the common course of business renders it probable that a thing would happen, the court may draw presumption that the thing would have happened, unless there are circumstances in a particular case to show that the common course of business was not followed. Thus, Section 114 enables the court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. Consequently, the court can presume that the common course of business has been followed in particular cases. When applied to communications sent by post, Section 114 enables the court to presume that in the common course of 14 natural events, the communication would have been delivered at the address of the addressee. But the presumption that is raised under Section 27 of the GC Act is a far stronger presumption. Further, while Section 114 of the Evidence Act refers to a general presumption, Section 27 refers to a specific presumption. For the sake of ready reference, Section 27 of the GC Act is extracted below: ‘27. Meaning of service by post.—Where any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression "serve” or either of the expression "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.’

#14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that 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. (Vide Jagdish Singh v. Natthu Singh