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2005(1) Bankmann 444
BOMBAY HIGH COURT
N.A. Britto, J.
The Vasco Urban Co-op. Credit
Society Ltd. — Appellant
Versus
Mrs. Shobha D.
Korgaonkar — Respondent
Criminal Appeal No. 21 of 2003
Decided on 21-10-2004
For the Appellant:Mr. M.S. Sonak and Mr. D. Pangam, Advocates.
For the Respondent:Mr. Nitin Sardessai, Advocate.
IMPORTANT POINT
The question of a cheque for a larger amount than what is actually received by the accused would make no difference provided the entire amount so mentioned is necessary to discharge the debt or legal liability.
Headnote:(i) Negotiable Instruments Act, 1881—Sections 138(b) and General Clauses Act, 1897—Section 27—Evidence Act, 1872—Section 114(f)—C.P.C. 1908—Order 5 Rule 19-A(2)—Dishonour of cheque for insufficient of funds—Service of notice of demand sent through registered post at business address of accused—A/D returned with some signature—Secretary of complainant deposing it is not of accused—Acquittal on the ground that it was for the complainant to have proved, by examining the post-man, that the postal article was in fact received by the accused—Whether correct? (No).
Held: The submission made on behalf of the accused that the ratio of K. Bhaskaran’s case will not be attracted to the case at hand cannot be accepted. This is a case where the notice was sent at the business address of the accused and was received at the business address of the accused, about which there is no dispute. If the presumption available under Section 27 of the General Clauses Act, 1897 can be imported in a case where the notice is returned as “unclaimed” it can with equal force if not more be imported in a case where the postal article is received at the business address of the accused irrespective of whether it was received by the accused himself or herself or by some other member of his or her family. No doubt, the presumption under Section 27 of the General Clauses Act, 1897 is a rebuttable presumption but the said presumption cannot be rebutted by an accused only by denying the receipt of the notice in the statement under Section 313 of the Code of Criminal Procedure, 1973. Certainly, something more than that is required to be done on the part of the accused to rebut the said presumption. As rightly observed by the Apex Court in the case of K. Bhaskaran v. Sankaran Vaidhyan Balan and another (supra) any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the -amount would resort to the strategy of subterfuge by successfully avoiding the notice. It also cannot be ruled out that a cunning accused person may just scribble something on the A.D. card and not his real signature with a view to take plea that such a notice was not received by the accused and this also could not be ruled out in the case at hand. As observed by the Supreme Court in the case of Dalmia Cement Ltd. v. Galaxy Traders and Agencies Ltd. (supra) efforts to defeat the objectives of law by resorting to innovative measures and methods are to be discouraged, lest it may affect the commercial and mercantile activities in a smooth and healthy manner, ultimately affecting the economy of the country. The laws relating to the Act which, therefore, require to be interpreted in the light of the object intended to be achieved by it despite there being deviation in the general law and the procedure provided for the redressal of the grievance to the litigants. The presumption available under Section 27 of the General Clauses Act or for that matter under Section 114(f) of the Indian Evidence Act, 1872 is available to both Civil as well as Criminal proceedings. It was for the accused to rebut the said presumption either through the evidence led by the complainant or by leading evidence. In this case, accused has failed to rebut the said presumption available in favour of the complainant under Section 27 of the General Clauses Act, 1897. This being the position in my view, the learned Judicial Magistrate, First Class, committed a gross error in holding that the presumption in favour of the complainant was rebutted by the accused by establishing that she had not received the said notice. The admission on behalf of the complainant that the signature on the A.D. card did not tally with the signature of the accused was not sufficient to displace the said statutory presumption. (Para 16)
(ii) Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque for insufficient funds—Cheque issued for Rs. 90,000/- when the liability of accused was Rs. 86,089/-—Acquittal on ground that the cheque issued was not in discharge of an existing debt or liability, the provisions of Section 138 would not be attracted—Whether correct? (No)—Acquittal set aside.
Held: From the evidence produced on behalf of the complainant both oral and documentary, it was abundantly clear that the accused owed to the Bank on 30th September, 2000, a total sum of Rs. l,92,350/- and the cheque which was issued for Rs. 90,000/- was for an amount which was much less than the amount due. (Para 18)
Held consequently: In my view, there is absolute perversity in the said finding because the learned Judicial Magistrate, First Class, has overlooked the fact that on the date of issuing the cheque, the accused had owned to the complainant Bank a total sum of Rs. 1,92,350/- which was much more than the amount of the cheque of Rs. 90,000/- only and being so the said cheque was issued only towards the part of the liability which the accused had towards the repayment of the loan taken by the accused. This finding deserves to be upset as perverse. (Para 19)
Held finally: In conclusion, it may be observed that the finding given by the learned Judicial Magistrate, First Class on both counts deserves to be set aside as erroneous and perverse. Consequently, it must be held that the complainant had proved its case beyond reasonable doubt against the accused. The accused, is, therefore, hereby held guilty under Section 138 of the Negotiable Instruments Act, 1881. (Para 21)
N.A. Britto, J.— This is complainant’s appeal against acquittal of the accused under Section 138 of the Negotiable Instruments Act, 1881 (Act, for short) by Judgment/Order dated 21st September, 2002 of the learned Judicial Magistrate, First Class, Vasco-da-Gama, in Case No. 163/N/2000/D.
2. There is no dispute that the complainant-Credit Society had advanced a loan of Rs. 1,50,000/- to the accused. On or about 9th October, 2000, the accused issued a cheque to the complainant in the sum of Rs. 90,000/- drawn on Bank of India, Headland Sada Branch, Vasco-da-Gama. When the said cheque was presented to the Goa State Co-operative Bank Limited, the same was returned with endorsement “Funds insufficient”. The complainant claims to have sent a registered letter dated 23rd October, 2000, informing the accused that the said cheque was returned with the said remark and calling upon the accused to make the payment of Rs. 90,000/- within a period of 15 days from the receipt of the said notice.
3. As the said notice was not complied with, the complainant filed a complaint on or about 21st November, 2000, and thereafter, in the course of the trial, the complainant examined their Secretary and produced necessary documents including the said cheque, notice, etc.
4. The learned Judicial Magistrate, First Class, has acquitted the accused on two counts. The first is on the basis that the A.D card produced by the complainant it could not be said that the accused had received the said notice. The second is that what was due and payable by the accused to the complainant as on the date of issuance of the said cheque on 30th September, 2000, was Rs. 86,089/- and, therefore, there was no existing liability on the part of the accused to pay Rs. 90,000/- being the amount of the cheque issued to the said complainant.
5. Admittedly, the learned Judicial Magistrate, First Class, has concluded that the notice issued was addressed to the accused at her business address, an address which was given by the accused when she obtained the said loan as well as the address where the accused was served with the summons sent to the accused in the said criminal case. It is also an admitted position that the said Secretary who was examined on behalf of the complainant admitted in his evidence that the signature on the A.D card did not tally with the signature of the accused. On facts, the learned Judicial Magistrate, First Class, concluded that it could not be said that the accused had received the said notice, and therefore, was not liable for an offence under Section 138 of the Act. The learned Judicial Magistrate, First Class also came to the conclusion that the presumption which was otherwise available in favour of the complainant, was rebutted.
6. This first finding of the learned Judicial Magistrate, First Class has been challenged by Mr. M. S. Sonak, learned Counsel of the Appellant by placing reliance on various authorities. It is the submission of Mr. Sonak, learned Counsel that the said Secretary who was examined on behalf of the complainant had at no stage stated that the said signature on the A.D. Card was not that of the accused and that it would be open for any accused to scribble anything on a A.D card and then turn around and say that the signature was not of the accused. It is his submission that as long as the said registered article was delivered at the business address of the accused, the provisions of Section 138 of the Act r/w the presumption available to the complainant, would be satisfied.
7. On the other hand, Mr. Nitin Sardessai, learned Counsel of the Respondent/Accused has submitted that in Order to rebut the said presumption it was not necessary for the accused to have stepped into the witness box and the said presumption could also be rebutted from the evidence led on behalf of the complainant. Mr. Sardessai, learned Counsel has submitted that once it was accepted on behalf of the complainant that the signature was not that
