|CRLP 929 / 2013||CRLPSR 3321 / 2013|
CRIMINAL PETITION NO.929 OF 2013
This petition is filed by the petitioner-accused under Section 482 Cr.P.C. to quash the proceedings in C.C.No.77 of 2013 on the file of XIV Special Magistrate Court, Erramanzil, Hyderabad, which was taken on file for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the Act’)
2. It is alleged in the complaint that the complainant and accused are known to each other and the accused is doing Roads and Buildings contract work. For his urgent Roads and Buildings contract work, the accused borrowed loan amount of Rs.16 lakhs on 25-08-2011 agreeing to repay the same within six months on demand by the complainant and also agreed to pay interest at 18% per annum. On
28-06-2012, the accused issued a cheque for Rs.8 lakhs and on 29-06-2012, he issued another cheque for Rs.8 lakhs, drawn on State Bank of Hyderabad, Bhadrachalam branch, towards discharge of part of loan amount. When the cheques were presented for encashment, the same were returned with an endorsement ‘funds insufficient’. After issuing statutory legal notice, the complaint was filed.
3. The only contention raised by the learned counsel for the petitioner is that there is no proper notice as contemplated under Section 138 (b) of the Act.
4. Taking loan amount from the complainant and issuance of cheques have not been denied or disputed by the accused. Once issuance of cheque is admitted, presumption is that it was issued for legally enforceable debt or liability. The object of Section 138 (b) of the Act is to enable the genuine borrower or the drawer of the cheque to give an opportunity to pay that amount so that no offence can be made out. After receipt of notice from the complainant, the borrower has to pay the amount within 15 days from the date of receipt of notice. It is specifically stated in the complaint that the notice was served on the accused on
28-07-2012. Acknowledgement of the accused is also filed. But, the learned counsel for the accused is seriously disputing the signature on the acknowledgement because the signature on the acknowledgement and the signatures on the cheques in question are not tallying even on the naked eye also. Therefore, basing on the same, learned counsel for the accused contended that no opportunity was given to the accused to pay the amount and hence, no cause of action arises for the complainant to file the complaint.
5. Presumption under Section 27 of the General Clauses Act, 1897 can be raised when it is proved that the registered letter with prepaid stamps containing the documents has been posted at the proper address of a addressee, aprima facie presumption arises viz., that the notice was served meaning thereby, that the letter reached its destination at the proper time according to the regular course of business of the post office and it was received by the person to whom it was addressed. It is a rebutttable presumption. The address mentioned in the acknowledgement, dated 28-07-2012 and the address mentioned in the Criminal Petition is one and the same. Therefore, it cannot be said that the address on the acknowledgment is in correct or wrong address. Therefore, burden shifts to the addressee under Section 27 of the General Clauses Act, to rebut the presumption showing that the notice has not in fact served on him and some body received the same. For proving the same, necessarily, the accused has to examine the postman who served the registered post with acknowledgement due on him. No doubt, the signature of the accused on the acknowledgement varies when it is compared with the signatures on the cheques. Whether the accused puts the signature on the acknowledgement in a different manner or whether some body signed on behalf of the addressee or whether addressee is having a knowledge about the contents of notice issued under Section 138 (b) of the Act, are questions of fact which cannot be resolved exercising the powers under Section 482 Cr.P.C. Simply because the signature of the accused is varying, it cannot be a ground to quash the proceedings because the complainant has to establish that the accused signed the acknowledgement and if the acknowledgement has not been signed by the accused, then the burden is on him to show that some body on his behalf signed the acknowledgment and he has no knowledge about the demand notice. Therefore, there are no grounds to quash the proceedings.
6. Accordingly, the Criminal Petition is dismissed. Observations, if any, made in this order are only for the purpose of disposal of the present petition and uninfluenced by any of the observations, the trial Court shall dispose of the case in accordance with law. Miscellaneous petitions, if any, pending in this Criminal Petition shall stand closed.