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2006 Supreme(Bom) 1559
2007(1) ALL MR 212
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (PANAJI BENCH)
N. A. BRITTO, J.
Mr. Gabriel Peter D'Souza s/o. Estainslau D'Souza- Applicant
Versus
Mrs. Cirila Rosa Maria Pinto- Respondent
Criminal Revision Application No.39 of 2005
Decided on 27th September, 2006.
Advocates appeared
Mr. D. J. P ANGAM, Advocate for the Applicant.
Mr. A. F. DINIZ, Advocate for the Respondent.
Headnote:Civil Procedure Code, 1908 - Order XXI, Rule 54 - Attachment of immovable property - Conditions for - Strict compliance with conditions mandatory to make attachment effective - Non-comp- liance of mandatory conditions - No attachment in eyes of law. - The Court noted that from the language of Order 21, Rule 54, CPC that the conditions for attachment of immovable property are mandatory in nature and, therefore, it is necessary for the attachment to be effective, the strict compliance is very much necessary. If the mandatory conditions are not complied with, there is no attachment in the eyes of law.
Negotiable Instruments Act, 1881 - Section 138 - Criminal Procedure Code, 1973, Section 397 - Criminal revision - Dishonour of cheque - Cheque, time barred - Accused cannot be heard for first time in revision - Cannot contend that cheque in question given towards a time barred debt. - The accused cannot be heard for the first time in this revision that the subject cheque was given towards a debt which was time barred.
Negotiable Instruments Act, 1881 - Section 138 - Criminal Procedure Code, 1973, Section 397 - Revision - Dishonour of cheque - Time barred cheque - Accused cannot contend for first time in revision that subject cheque issued towards a debt which was time barred. - The accused cannot be heard for the first time in this revision that the subject cheque was given towards a debt which was time barred.
Negotiable Instruments Act, 1881 - Section 138 - Criminal revision of correctness of judgments - Conviction and sentence by J.M.F.C. - Agreement for development of property by accused - Payment made to complainant Rs. 1,25,000/- - Liability to pay Rs. 18,75,000/- in five instalments - Bouncing of cheque - Cheque returned with remark ’payment stopped by drawer’ - Notice served by complainant - Cheque not issued by accused as alleged - Despatch of notice - Rebuttal of presumption - Absence of attachment - No hurdle to enter into arrangement - There was no legally enforceable debt contended in rejected - Delay in deciding complain - Trial of complaint under Section 138 be continued day to day - Question of sale certificate - Dismissal of execution proceeding - Direction to take action who issued sale certificate - Bail bonds of accused are cancelled.
Negotiable Instruments Act, 1881 - Section 138 - Dishonour of cheque - Notice of demand - Service of, on accused - Notice returned with endorsement "unclaimed" - Presumption of service available to complainant - Accused to have rebutted said presumption. - Once a postal article is returned with endorsement "unclaimed" it presupposes that the postman has made an endeavour not only to deliver the said article at the given address but has also given notice of arrival of the postal article as per the relevant provision of postal manual in that regard and only after the expiry of seven days of the said article remaining unclaimed that he has returned the same as unclaimed, and, in such a situation the presumption of service was certainly available to the complainant and it was for the accused to have rebutted the said presumption.
Negotiable Instruments Act, 1881 - Section 138 - Dishonour of cheque - Subsequent to issuance of cheque, accused instructed to Bank not to honour cheque - Cheque bounced for insufficient funds in account of accused - Accused liable under Section 138 of Act. - The accused also stated that he had lost his cheque book and some of the cheques issued were blank and he asked the Bank to stop the payment. The accused examined two witnesses in his defence namely Satish Falari/DW 1 who stated that in view of the letter issued by the accused dated 22.1.1999 the payment was stopped and also stated that the account was formant since 1.1.1999 and even if the letter was not issued to stop the payment of the cheque, the cheque would not have been realized as there was no balance in the account.
Negotiable Instruments Act, 1881 - Section 138 - Dishonour of cheque - Demand notice - Service of - Not returned with endorsement "unclaimed" - Presumption of service of notice upon accused - Available to complainant - Accused has to rebut said presumption. - The address which the accused have in the said documents could be presumed to have been an address at which the accused could have been reached to. Once a postal article is returned with endorsement "unclaimed" it presupposes that the postman has made an endeavour not only to deliver the said article at the given address but has also given notice of arrival of the postal article as per the relevant provision of postal manual in that regard and only after the expiry of seven days of the said article remaining unclaimed that he has returned the same as unclaimed, and, in such a situation the presumption of service was certainly available to the complainant and it was for the accused to have rebutted the said presumption.
In this revision petition, the accused questions the correctness of the Judgment dated 14-9-2005 of the learned Sessions Judge, Panaji, upholding the conviction and sentence imposed upon the accused under Section 138 of the Negotiable Instruments Act, 1881(Act, for short) by Judgment dated 19-82004 of the learned J.M.F.C., Mapusa.
2. The parties hereto are being referred to in the names as they appear in the cause title of the said complaint.
3. The case of the complainant was that the accused had entered into an agreement dated 29-3-1997 for the development of a property allotted to her by Order dated 26-31995 of the learned Civil Judge, Senior Division, Panaji, surveyed under S.No.19/2 and in terms of the said agreement the accused had paid to the complainant Rs.1,25,000/- and was liable to pay to her Rs.18,75,000/-, to be paid in five instalments. The last instalment was to be paid on 30-9-1997. The complainant (sic accused?), however, did not honour the said agreement and after the five cheques bounced, issued a cheque dated 19-4-2000 in the sum of Rs.13,00,000/- and when the complainant presented the said cheque the said cheque was returned with remark "payment stopped by drawer" dated 11-7-2000. The complainant therefore served a notice upon the accused dated 24-7-2000 by registered A.D. but the said notice was returned unclaimed and as the notice was not complied with, the complainant filed the complaint.
4. The complainant examined herself in support of her complaint and produced the relevant documents.
5. On the other hand, the case of the accused, as reflected in his statement recorded under Section 313 of the Code of Criminal Procedure, 1973 (Code, for short), was that he had not issued the cheque for Rs.13,00,000/ - on 19-4-2000 but a blank cheque was issued in December, 1997. The accused stated that after signing of the said agreement there was an execution petition filed against the complainant by one Pinto (Pantaleao Pinto) and that the accused had paid "the auction of Rs.2,11,000/-" and got the property of the complainant on auction on 9-1-1988 which was after the agreement and in view of the said auction he became the exclusive owner of the property and therefore he was not owing any legally enforceable debt to the complainant. The accused also stated that the cheque in question was given to the complainant in December, 1997 with an understanding that she wanted to discuss about the balance amount and the complainant had stated that she would commit suicide and he had written to the Bank to stop payment. The accused also stated that he had lost his cheque book and some of the cheques issued were blank and he asked the Bank to stop the payment. The accused examined two witnesses in his defence namely Satish Falari/ DW -1 who stated that in view of the letter issued by the accused dated 22-1-1999 the payment was stopped and also stated that the account was dormant since 1-1-1999 and even if the letter was not issued to stop the payment of the cheque, the cheque would not have been realized as there was no balance in the account. The accused also examined Pantaleao Pinto/DW2 who, inter alia, stated that he had filed a civil suit for the recovery of amount of Rs.81,893.10 against the complainant which was decreed exparte and that after the property was sought to be attached an auction was to be held, the accused made an application and deposited the sum of Rs.2,10,000/- with interest and since the accused paid the money, the execution was withdrawn by him.
6. There are three submissions made on behalf of the applicant/accused. The first is as regards non service of the statutory notice. It is submitted by Mr. D. Pangam, the learned Counsel on behalf of the accused that the notice was addressed on an incomplete address of the accused and therefore no presumption of service could have been drawn against the accused. He submits that the address did not have house number of the accused. On the other hand, Mr. A.
