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2006(2) Bankmann 82
BOMBAY HIGH COURT
N.A. Brittoo, J.
Deelip Apte — Petitioner
versus
Nilesh P. Salgaonkar
& Anr. — Respondents
Criminal Revision Application No. 15 of 2006 with Criminal Appeal No. 60 of 2005
Decided on 6-7-2006
Counsel for the Parties:
For the Petitioner:Shri S.A. Samant, Advocate.
For the Respondent No. 1:Shri P.P. Singh, Advocate.
IMPORTANT POINT
When notice under Section 138(b) of Negotiable Instruments Act was sent by registered post to correct address of accused, same would be deemed to have been served and presumption available under Section 27 of General Clauses Act could not be rebutted either by mere suggestion or by mere denial.
Headnote:(i) Negotiable Instruments Act, 1881—Section 138—Prosecution for dishonour of cheque—Order of acquittal on ground that notice was not proved as served upon accused—Regd. envelope containing notice was returned with endorsement “intimated” and “unclaimed”—Accused when examined under Section 313 Cr.P.C. did not state what was his correct address—Accused was served on that address with summons of Court—Presumption of service arose even in absence of house number given in address as it was small ward of village—Presumption available under Section 27 of General Clauses Act could not be rebutted by way of mere suggestion or by mere denial. (Para 5)
(ii) Negotiable Instruments Act, 1881—Section 138—Prosecution for dishonour of cheque—Defence plea that cheque was given as security and not in discharge of enforceable liability—Burden of proving that there was no existing debt or liability was on accused—Only because complainant had not stated in complaint that he had given loan to accused on account of which liability towards cheque had arisen and used the words business transaction, case of complainant could not be disbelieved—Presumption available in law could not be rebutted by mere suggestion or by bare denial—Accused chose not to step in witness box to try to rebut said presumption—Magistrate was not justified in acquitting accused and he was liable to be convicted.
Result: Revision dismissed. Appeal allowed.
N.A. Britto, J.—The subject matter of the dispute between the complainant and the accused are three cheques which have been dishonoured, the details of which are as follows:
1.Cheque No. 4605574 dated 28-11-2003 for Rs. 50,000/-
2.Cheque No. 4605575 dated 28-11-2003 for Rs. 50,000/-
3.Cheque No. 4605576 dated 01-12-2003 for Rs. 70,000/-
2. Broadly stated, the case of the complainant is that the said three cheques were given by the accused to the complainant by way of payment of Rs. l,70,000/- advanced by the complainant to the accused in the first week of November, 2003. Likewise, it was the case of the accused that the said three cheques were given to the complainant by way of security. As regards the first two cheques, the complainant sent a notice to the accused dated 01.12.2003 and regarding the third cheque, the complainant sent the notice dated 09.01.2004. Both the notices were sent by registered A.D. and upon non-compliance of the said notices, the accused filed two complaints. The first complaint in respect of the two cheques came to be registered as C.C. No. 219/P/04/B while the second complaint came to be registered as C.C. No. 376/OA/04/C. The said two complaints were allotted to two different J.M.F.Cs. and it appears that neither the complainant nor the accused made any efforts, as required in law to ensure that both the said complaints were tried by one and the said J.M.F.C. The first complaint ended in conviction of the accused by Judgment/Order dated 29.03.2005. The accused has been sentenced to undergo simple imprisonment of two months and to pay a compensation of Rs. 1,00,000/- and in default of payment of compensation, the accused has been Ordered to undergo six months S.I. The accused carried an appeal against the said conviction to the Court of Sessions, being Criminal Appeal No. 23/04. However, the learned Additional Sessions Judge by Judgment dated 05.04.2006, was pleased to dismiss the same. Criminal Revision Application No. 15/06 arises from the conviction and sentence in respect of the first two cheques given by the accused to the complainant. The second complaint came to be dismissed and the accused acquitted by Judgment/Order dated 06.04.2005. It is against this Judgment that the complainant has filed Criminal Appeal No. 60/05. By consent of both the parties, the Criminal Revision Application as well as the Criminal appeal are being disposed of by this common Judgment as the facts as well as law applicable to both the cases are the same.
3. There is no dispute that the complainant had taken a loan of Rs. 50,000/- from Pirna Co-operative Credit Society in which the accused has stood as a guarantor. There is also no dispute that the accused had taken a loan of Rs. 5,00,000/- from Punjab National Bank for which the complainant and one Gajanan Mashelkar had stood as guarantors and as such had received a notice dated 08.10.2003, calling upon them to clear the balance amount of the said loan of Rs. 5,55,022/-. The complainant had also stated that the complainant was having a Grocery shop and a STD pay phone at Madel, Tivim, Goa, and that prior to the issue of the suit cheques to him, two to three and half years before, the accused was frequently visiting his Grocery shop and with the passage of time, they became friends. The complainant had also stated that the accused used to purchase household articles from his Grocery shop and also used to come to the said STD booth for the purpose of phoning but whenever the accused purchased the household goods from his Grocery shop, the accused always cleared the bills in cash and that his relations with the accused were very cordial and both used to visit each other’s houses at least once a week. The aforesaid facts have been denied on behalf of the accused in the cross examination. However, if the complainant and the accused could stand sureties for one another, there is no reason why the said facts stated by the Complainant could not be accepted and onc
