Held sufficient= a statutory notice was received by the family member of the accused that too served on wife of the accused. Notice to the drawer is sine qua in terms of clause(b) of proviso to Section 138 of Negotiable Instruments Act. As per Section 27 of the General Clauses Act, 1897, a notice is deemed to be served, when it is addressed properly and is sent through proper post.

IN THE HIGH COURT OF JUDICATUREAT MADRAS

DATED: 29.04.2011

CORAM

THE HONOURABLE MS.JUSTICE R.MALA

Crl. R.C. No.875 and 2007

P.Glory Kamalam .. Petitioner/Accused

..Vs..

L.T.Rajasekaran .. Respondent/complainant

Prayer:- The Criminal Revision is filed under Sections 397 read with 401 of Cr.P.C., to call for the records and to set aside the judgment dated 14.06.2007 made in C.A.No.334/2006 on the file of the learned Additional District and Sessions Judge, Fast Track Court No.II, Coimbatore, confirmed the conviction and sentence imposed by the trial Court in the judgment dated 11.07.2006 made in C.C.No.701/2004 on the file of the learned Judicial Magistrate No.II, Coimbatore and acquit the petitioner.

For Petitioner : Mr.P.M.Duraiswamy
For Respondent : Mr.S.Kolandasamy

ORDER

The revision arises out of the judgment of conviction and sentence dated 14.06.2007 made in C.A.No.334/2006 on the file of the learned Additional District and Sessions Judge, Fast Track Court No.II, Coimbatore, where by the accused is found guilty for the offence under Section 138 of Negotiable Instruments Act and sentenced to undergo simple imprisonment for 3 months and imposed a fine of Rs.3,000/- in default, to undergo one month simple imprisonment, confirmed the judgment of conviction and sentence dated 11.07.2006 made in C.C.No.701/2004 on the file of the learned Judicial Magistrate No.II, Coimbatore.
2.The case of the respondent/complainant is that the accused borrowed Rs.3,00,000/- from him on 23.09.2003 for her urgent and for educational expenses of her children and also promised to repay the above said amount within six months. When the complainant requested her to discharge the above said legally enforceable debt, the accused issued a cheque bearing No.000636641008002 for a sum of Rs.3,00,000/- under Ex.P1 on 29.03.2004. When the cheque under Ex.P1 was presented in the Bank, it was dis-honoured with an endorsement ‘Insufficient funds‘ and the return memo was marked as Ex.P2 and the debit advice was marked as Ex.P3. So the complainant issued a statutory notice on 22.04.2004 under Ex.P4 calling upon the accused to pay the amount that she borrowed, within 15 days and an acknowledgement card was marked as Ex.P5. Neither the accused repaid the amount nor given any reply to the statutory notice. Hence, the respondent/complainant constrained to file a complaint against her.
3.The learned Magistrate, after furnishing the copies of the documents to the accused, since the accused pleaded not guilty, examined the witnesses P.W.1 and D.W.1 and perused the documentary evidence under Exs.P1 to P6 and D1 to D4 and considering the same, convicted the accused for the offence under Section 138 of Negotiable Instruments Act and sentenced her as indicated above, against which, the accused preferred a Criminal Appeal in C.A.No.334/2006 on the file of the learned Additional District and Sessions Judge, Fast Track Court No.II, Coimbatore. The learned Appellate Judge, after hearing the arguments of both sides counsel, confirmed the conviction and sentence passed by the trial Court, against which, the present revision has been preferred by the revision petitioner/accused.

4.Challenging the said conviction and sentence passed by both the Courts below, the learned counsel for the petitioner submitted that the complaint itself is not maintainable, since no statutory notice has been served to the petitioner. The second limb of the argument advanced by him that the petitioner/accused has not borrowed any amount from the respondent/complainant. She issued a blank cheque in favour of one Leelamani for discharging of two months interest and the same was utilised by the respondent/complainant herein, who is close associate of said Leelamani. So there is no legally enforceable debt. He further submitted that both the Courts below have not considered this aspect in proper perspective. Hence, he prayed for allowing of this revision. To substantiate his argument, he relied upon the decisions of the Apex Court.

5.Refuting the same, the learned counsel for the respondent/complainant submitted that the petitioner/accused herein admitted her signature in the cheque under Ex.P1. The evidence of P.W.1, the respondent/complainant has been clearly proved that the petitioner herein has borrowed money and for discharging the same, she issued a cheque and the same was presented for encashment in the Bank. But, it was returned as ‘insufficient funds’. So a statutory notice was issued by the respondent/complainant and the same was received by her mother-in-law. D.W.1, the petitioner/accused, in her cross-examination, fairly conceded that her mother-in-law is Sangathal. After receiving the statutory notice, neither she sent any reply to the respondent nor she repaid the amount she borrowed. The contention of the learned counsel for the petitioner that no statutory notice was received by the petitioner/accused, does not merit acceptance. He further submitted that once the petitioner/accused accepted the signature in the cheque was her, the holder in the due course having the presumption under Sections 118 and 139 of Negotiable Instruments Act. It is rebuttable presumption, but the petitioner herein has not rebutted the presumption, even though she examined herself as D.W.1 and marked the documents under Exs.D1 to D4 on her side. So, both the Courts below have considered all the aspects in proper perspective and came to the correct conclusion. Hence, he prayed for the dismissal of the revision.

6.Considered the rival submissions made on both sides and the materials available on record.

7.Now this Court has to decide that whether the notice issued under Ex.P4 is contemplated under Section 138(b) of Negotiable Instruments Act. Admittedly, a statutory notice under Ex.P4 was issued to the address “P.Glory Kamalam, W/o.Samidass, D/o.Paulraj, 53, 11th Cross, Thirumugalnagar, Peelamedupudur, Peelamedu, Coimbatore-4 and an acknowledgement card for the same was marked as Ex.P5 and the postal receipt was marked as Ex.P6. In the acknowledgement card, it was signed as “C.Sangathal, as per the instruction of P.Glory Kamalam”. The accused received the statutory notice on 26.04.2004 and in the postal seal, the date “28.04.2004” fins place. In the said acknowledgement card, the address of the accused was mentioned as “53, 11th Cross Street, Thirumugalnagar, Peelamedupudur, Peelamedu, Coimbatore-4. At this juncture, it is appropriate to consider the letter sent by the complainant’s father Thangavelu to the accused daughter. In the said letter under Ex.D2, it was stated as “11th cross, Thirumagalnagar, Peelamedupudur, Coimbatore-641 004.” So, without mentioning the door number, the letter was addressed to the daughter of the accused and the same was marked by the petitioner/accused herein. In such circumstances, it is relevant to consider the oral evidence of D.W.1., the petitioner/accused herein. In her cross-examination, she herself admitted that Sangathal is her mother-in-law. A suggestion was posed to her that on her instruction only, the said Sangathal was received the notice and put her signature in the acknowledgement card, but it was denied by her. A family card was marked as Ex.D1, in that it was stated as C.Samiathal, aged 76 years, who is a mother-in-law of the accused and living along with her. In such circumstances, a prima-facie complaint has proved that the statutory notice was served to the family member of the accused.

8.At this juncture, it is appropriate to consider the decision relied upon by the learned counsel for the petitioner reported in (2009) 14 SCC 398 (M.D.Thomas v. P.S.Jaleel and another) in paragraphs-5 to 8, it read as follows:

“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 the respondent complainant 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 complainant’s case. Therefore, the conviction of the appellant cannot be sustained. 8.In the result, the appeal is allowed. The impugned order is set aside and the order of acquittal passed by the trial Court is restored.”

In the above decision, a statutory notice was received by the family member of the accused that too served on wife of the accused. Notice to the drawer is sine qua in terms of clause(b) of proviso to Section 138 of Negotiable Instruments Act. As per Section 27 of the General Clauses Act, 1897, a notice is deemed to be served, when it is addressed properly and is sent through proper post.

9.But, here, as per the evidence of D.W.1, her mother-in-law is residing with her and she never stated that her mother-in-law is not residing with her. Furthermore, she has not stated that she has not received any notice. In her chief-examination, she stated that she has not given any instruction to Sangathal to receive the notice and she gone to the extent of saying that she does not know the said Sangathal. On contrary, in her cross-examination, she fairly conceded that Sangathal is her mother-in-law, which is as follows: ” r’;fhj;jhs; vd;Dila khkpahh; “. If really she has not received the said notice, she may very well depose that she has not received any notice. But, in her cross-examination, she stated that after receipt of the notice issued by the complainant, she has not sent any reply to him, which is as follows: ” thjpapd; mwptpg;gpw;F gpwF gjpy; mwptpg;g[ vJt[k; bfhLf;ftpy;iy @/ The mother-in-law of the accused was not examined to show that she has not received the statutory notice under Ex.P4. Considering the cumulative facts of evidence under Exs.P1, P4, P5, D1 and D2, they have clearly proved that the notice was valid under Section 138(b) of Negotiable Instruments Act, which was received by the family member of the petitioner/accused. So I am of the view that the notice issued was valid under clause(b) of the Section 138 of Negotiable Instruments Act and therefore, the said statutory notice under Ex.P4 is valid under law. As per Section 27 of the General Clause Act, notice is deemed to be served, when it is addressed properly and it is sent through registered post under Ex.P6 and received by mother-in-law under Ex.P5. So valid statutory notice was issued.
10.The learned counsel for the petitioner submitted that the petitioner has not issued a cheque under Ex.P1 to the respondent/complainant, but she issued a blank cheque only to Leelamani for discharging of two months’ interest and that was utilised for filing this case by the respondent/complainant. Since issuance of the cheque was accepted and the signature in the cheque was also accepted, the presumption under Sections 118 and 139 of Negotiable Instruments Act is invoked by holder of the cheque.

11.The petitioner herein also raised a plea that the respondent/complainant is not a son of Thangavelu and Leelamani, because they are having only daughters, but the relationship of the parties are immaterial. It is the duty of the respondent/complainant to prove that the cheque under Ex.P1 was issued for discharging legally enforceable debt. As already stated that the notice was issued as soon as the cheque was dishonoured, but no reply was sent by the petitioner/accused to the notice. After preferring the complaint against her, she has not denied that she has not issued any cheque. After examining the witnesses, incriminating evidence against the revision petitioner was placed before under Section 313(1)(a), she stated as ” bgha; tHf;F@ . @bgha; @ / She never stated that a cheque was issued to only Leelamani and the same was utilised for this purpose. She also stated that a false case has been foisted against her. Admittedly, she never replied that she has not issued a cheque to the respondent/complainant. In such circumstances, I am of the view that the arguments advanced by the learned counsel for the petitioner that cheque was issued only in favour of Leelamani and the same was utilised for the respondent/complainant to prefer this case against the petitioner/accused herein, does not merit acceptance.

12.At this juncture, I am of the view that Ex.P1 cheque was issued only to the respondent/complainant. P.W.1, the respondent/complainant, in his evidence, he categorically deposed that the petitioner borrowed money to meet out the educational expenses of her daughter and promised to repay the same within six months. Since she has not repaid the same within six months, he demanded her. So the petitioner/accused gave a cheque for discharging the said amount. When the cheque under Ex.P1 was presented in the Bank for encashment, it was dishonoured. But, she admitted the signature in the cheque under Ex.P1 is of her. In such circumstances, I am of the view that the respondent/complainant is entitled to invoke presumption under Sections 118 and 139 of Negotiable Instruments Act.

13.At this juncture, it is appropriate to consider the decision relied upon by the learned counsel for the petitioner reported in (2006) 3 SCC (Cri) 30 (M.S.Narayana Menon Alias Mani v. State of Kerala and another), in which, the initial burden of proof is on accused to rebut the said presumptions by raising a probable defence. If he discharges the said burden, the onus thereafter shifts on to the complainant to prove his case. Burden of proof on accused is not heavy. He need not to disprove the prosecution case in its entirety. He can discharge its burden on the basis of preponderance of probabilities through direct or circumstantial evidence. For said purpose, he can also rely upon evidence adduced by complainant. There is no quarrel over the proposition.

14.It is true that the revision petitioner/accused is entitled to rebut the presumption without let in any evidence, on the basis of the evidence let in by the complainant as well as the document. But now this Court has to decide that whether the petitioner/accused has rebutted the presumption. It is true that the petitioner/accused was examined as D.W.1 and she filed the documents to prove that her daughter had finished her B.Sc. Bio-technology in the year April 2001 and M.Sc. Bio-technology in the year April 2003, which were evidenced by the certificates under Exs.D3 and D4. It is pertinent to note that P.W.1’s father Thangavelu sent a letter under Ex.D2 to the daughter of the accused in respect of demanding repayment of the loan obtained by her mother, which shows that there was a loan transaction between the revision petitioner/accused and the complainant’s family. In such circumstances, if she has not borrowed that amount, why should she kept quite all along. Merely because the documents filed under Exs.D3 and D4 will not absolve the liability of the revision petitioner that she has not borrowed money from the respondent/complainant for meeting out educational expenses of her daughter.

15.At this juncture, this Court has to consider the judicial notice about the public notice published in the Daily. The learned counsel for the respondent/complainant submitted that the petitioner has a habit of borrowing money and refused to repay the same and that the Banks published her name as a default debtors in the Daily. So, I am of the view that even though the paper has been placed before me, since it is the case under Section 138 of Negotiable Instruments Act, the guilt under Section 138 of Negotiable Instruments Act has to be proved by the respondent/complainant is beyond reasonable doubt. In such circumstances, I am of the view that the above argument is no way strengthen the case of the respondent/complainant. But, the evidence of D.W.1 and the documents under Exs.D1 to D4 have not rebutted the presumption under Section 138 of Negotiable Instruments Act with the probable defence. Hence, I am of the view that the petitioner/accused has failed to rebutt the presumption under Section 139 of Negotiable Instruments Act. That factum has correctly considered by both the Courts below and came to the correct conclusion.

16.The learned counsel for the revision petitioner submitted that in the cheque under Ex.P1, a signature was put in the front side as well as the back side of the cheque. So it is not valid under law. At this juncture, it is appropriate to consider the dictum of our High Court that no one can take advantage of his own fraud or mistake. Since she issued a cheque and admitted the signature in the cheque in both sides, the cheque was issued by the petitioner/accused only for discharging legally enforceable debt. In such circumstances, the arguments advanced by the learned counsel for the petitioner does not merit acceptance. As already stated that a cheque under Ex.P1 was issued only for discharging legally enforceable debt, which was presented for encashment in the Bank and the same was returned as ‘insufficient funds’ as per Ex.P2. A statutory notice under Ex.P4 was issued and the same was received by the mother-in-law of the accused, who is also residing under the same roof. As per Section 27 of the General Clauses Act, a notice was sent to the correct address. So it is deemed to be served to D.W.1. In her cross-examination, the revision petitioner/accused fairly conceded that she has not sent any reply to the said statutory notice. When questions are posed under Section 313 Cr.P.C., she never stated that she issued a cheque in favour of Leelamani. Considering the same, I am of the view that Ex.P1 cheque was issued only to the respondent/complainant for discharging legally enforceable debt and the same was returned as ‘insufficient funds’. Since the statutory notice was issued, she neither repaid the amount nor sent any reply. Hence, the ingredients of Section 138 of Negotiable Instruments Act was made out. So the petitioner is found guilty under Section 138 of Negotiable Instruments Act. Both the Courts below have considered all the aspects in proper perspective and came to the correct conclusion that the revision petitioner/accused is found guilty for the offence under Section 138 of Negotiable Instruments Act. So I do not find any merits in the arguments advanced by the learned counsel for the revision petitioner/accused.
17.The quantum of sentence is concerned, the petitioner/accused was convicted for three months’ simple imprisonment and imposed a fine of Rs.3,000/-, in default, to undergo one month simple imprisonment. So the sentence imposed by both the Courts below is fair and proper and hence it does not warrant any interference. Therefore, the criminal revision deserves to be dismissed and hence it is hereby dismissed.

18.In fine,
The Criminal Revision is dismissed.
The judgment of conviction and sentence passed by both the
Courts below are hereby confirmed.
The bail bond executed by the petitioner/accused, if any, shall
stand cancelled.
The trial Court is directed to take steps to secure the petitioner/
accused to undergo the remaining period of sentence imposed
on her.

 

 

 

 

kj

To

1.The Judicial Magistrate No.II, Coimbatore.

2. The Additional District and Sessions Judge
Fast Track Court No.II, Coimbatore.

3.The Public Prosecutor
High Court, Madras.

4.The Record Keeper
Criminal Section, High Court,
Madras