Back
(PANAJI BENCH)
P.V. Hardas, J.
Eslie P.M. Noronha Epitacio Noronha .... Appellant.
Versus
Prashant Pai Kakode Suryakant Pai Kakode another .... Respondents.
Criminal Appeal No. 61 of 2000, decided on 30-8-2001.
Advocates appeared :
S.S. Kantak, for appellant.
S.S. Kakodkar, for respondent No. 1.
Mrs. Winnie Countinho, A.P.P., for respondent No. 2.
The presumption of service of notice can only be raised when the prosecution is launched on the basis of the notice, and the objectives of the Negotiable Instruments Act, 1881 are to make a special provision by incorporating a strict liability for dishonoured cheques and to discourage efforts to defeat the objectives of the law.
Headnote:
Negotiable Instruments Act - Dishonoured Cheque - Section 138 - 138, 142, 27 of Negotiable Instruments Act, 1881 - The court discussed the interpretation of the provisions of the Negotiable Instruments Act, 1881, particularly the presumption of service of notice under section 27 of the General Clauses Act, 1897. The court emphasized that the presumption regarding the receipt of the notice can only be raised when the prosecution is launched on the basis of the notice. The court also highlighted the objectives of the Act, which is to make a special provision by incorporating a strict liability for dishonoured cheques and to discourage efforts to defeat the objectives of the law.
Fact of the Case:
The appellant filed a complaint against the respondent for dishonour of a cheque issued under section 138 of the Negotiable Instruments Act, 1881. The respondent was acquitted by the trial court on the grounds that the complaint was beyond the time prescribed and the appellant failed to prove the loan advanced to the respondent.
Finding of the Court:
The court found that the trial court's reference to the notice dated 14th July, 1995 was incorrect as the appellant relied on the notice dated 12th September, 1995. The court also emphasized that the presumption of service of notice can only be raised when the prosecution is launched on the basis of the notice.
Issues: The issues revolved around the interpretation of the provisions of the Negotiable Instruments Act, 1881, particularly the presumption of service of notice under section 27 of the General Clauses Act, 1897, and the timing of filing the complaint based on the notice.
Ratio Decidendi: The court held that the presumption regarding the receipt of the notice can only be raised when the prosecution is launched on the basis of the notice. It also emphasized the objectives of the Act, which is to make a special provision by incorporating a strict liability for dishonoured cheques and to discourage efforts to defeat the objectives of the law.
Final Decision: The appeal was allowed, the judgment of the trial court was set aside, and the complaint case was remitted back to the trial court for decision according to law within 4 months from receipt of the order.
2. The facts necessary for the decision of the appeal are set out hereunder :-
The appellant had filed the aforesaid complaint case, against the respondent No. 1 under section 138 of the Negotiable Instruments Act, 1881 on the allegations that the appellant had given a loan of Rs. 1,00,000/- to the respondent No. 1 as the respondent No. 1 was in need of money. The respondent No. 1 had promised to repay the said amount within a short time, however, the respondent No. 1 did not repay the said amount for a long time despite the assurances of the appellant.
3. The respondent No. 1 ultimately gave a cheque dated 10th July, 1995, bearing No. 0445006, drawn on the Bank of Maharashtra, Margao Branch, Goa. The appellant presented the said cheque to his Bank i.e. the Union Bank of India, Margao Branch on 11th July, 1995. The said cheque was returned on the same day to the appellant with a memo to the effect that the cheque could not be encashed due to insufficiency of funds. The appellant thereafter addressed a notice dated 4th July, 1995, which was sent by registered post with acknowledgement due to the respondent No. 1. The said notice contained in the envelope addressed to the respondent No. 1 was returned back to the appellant with an endorsement "not claimed returned to sender". Thereafter, the appellant met the respondent No. 1 and requested him to pay the amount due to the appellant and on the request of the respondent No. 1, the appellant represented the cheque on 9th September, 1995. On this occasion also, the cheque was not honoured and was returned back to the appellant because of insufficiency of funds. The appellant thereafter issued another notice dated 12th September, 1995, also by registered post with acknowledgement due to the respondent No. 1. The aforesaid notice contained in the envelope was again returned back to the appellant with the endorsement "Refused, Returned to sender". The two envelopes, one containing the unclaimed notice is marked as Exh. P.W. 1/D colly and the other envelope refusing to accept the notice is marked as Exh. P.W. 1/G colly. The copies of the notices were marked as Exh. P.W. 1/D colly and Exh. P.W. 1/G colly respectively.
4. On the basis of the complaint presented to Judicial Magistrate, First Class, Margao, the trial Court explained the substance of the accusation to the respondent No. 1 at Exh. 11. The substance of accusation is reproduced hereunder:
SUBSTANCE OF ACCUSATION
"The substance of accusation against you is that you owe legally enforceable debt to the complainant Mr. Eslie P.M. Noronha, you issued a cheque bearing No. 0445006 dated 10-7-95 of Bank of Maharashtra, Margao Branch. When the cheque was presented by the complainant it was dishonoured, inspite of legal notice dated 14-7-95 you have not made payments, thereby you have committed offence punishable under section 138 r/w 142 of Negotiable Instrument Act within the cognizance of this Court.
S.A. is explained to the acc. to which he admits to have understood the same and pleads as under :---
I plead not guilty."
5. It would be pertinent to note that with the substance of accusation, the learned trial Court has stated that inspite of legal notice dated 14th July, 1995, the respondent No. 1 had not made payments, thereby committing an offence punishable under section 138 r/w 142 of the Negotiable Instruments Act, 1881. The learned trial Judge has not made a reference to the notice dated 12th September, 1995, which was issued by the appellant in response to t
