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KERALA HIGH COURT
K. Ramakrishnan, J.
K.C. Rajesh —Appellant
versus
T.K. Santhakumar & Anr. —Respondents
Crl. A. No.2107 of 2005
Decided on 2.11.2015
For the Appellant:Sri. Dilip J. Akkara, Advocate
For the Respondent 1:Sri. N. Subramaniam, Sri M.S. Narayanan, Advocates
For the Respondent 2: Sri. Jibu P. Thomas, Public Prosecutor
IMPORTANT POINT
Date of receipt of intimation from bank has to be excluded for sending notice under Section 138(b) of the Act.
Headnote:Negotiable Instruments Act, 1881 — Section 138 — Prosecution for dishonour of cheque — Trial Court acquitted accused on finding that statutory notice was issued out of time and as such complaint was not maintainable — Appeal — Complaint allegations were that accused borrowed a sum of Rs.55,000/- from complainant and issued cheque for said amount but the cheque for reason insufficient funds — Complainant issued notice which was served upon accused but amount of cheuqe was not paid — Accused pleaded defence during trial that cheque was issued blank as security in a chitty transaction — No evidence was adduced to prove any connection for complainant with any person conducting chitty — No reply to statutory notice was sent — Presumption u/s 139 of the Act in favour of complainant could not be said rebutted — Receipt of intimation from bank was dated 12.7.1999 and notice was issued on 27.7.1999 — Day of receipt of intimation was to be excluded and thus notice sent on 27.7.1999 was within time — Acquittal judgment was liable to be set aside and accused was liable to be convicted — Offence was committed in 2000 — Ends of Justice to meet by awarding a sentence of fine of Rs.60,00/- with default sentence and sentence till residing of Court — Fine when recovered to be paid to complainant as compensation.
Held: It is true that the accused himself had gone to the witness box and adduced evidence and produced Exts.D1 to D3 to prove his case. But all those things will go to show that he was subscriber to a chitty conducted by M/s. Lakshmi chits and financiers and nothing more. There is no evidence adduced on the side of the accused to prove any connection for the complainant with any of the persons conducted the chitty. Further he did not send any reply to the notice issued by the complainant when the cheque was dishonoured as well. So under the circumstances, it can be safely concluded that the accused had failed to prove his case and the presumption under Section 139 of the Act has not been rebutted as once the signature in the cheque is admitted, then the burden is on the accused to prove the circumstances under which his cheque had reached the hands of the complainant. The evidence adduced on the side of the accused is not sufficient to discharge that burden. So under the circumstances, it can be safely concluded that Ext.P1 cheque was given to the accused in discharge of a legally enforciable debt for the amount due to the complainant from the accused.
The question as to whether the date of receipt of intimation from the bank regarding dishonour has to be excluded for the purpose of computing the period of 15 days for sending notice is the question to be considered in this case. For that purpose, it is necessary to consider Section 138 of the Act and Section 9 of the General Clauses Act are to be understood.
In such cases Section 9 of the General Clauses Act will apply and the first day of starting point of cause of action has to be excluded and it will have to be reckoned from the next day of starting point of cause of action for computing the period of limitation for doing certain action mentioned under the Section. Though it was decided for the purpose of considering the question for the purpose of period mentioned in clause (a) and (c) of Proviso to Section 138 and Section 142(b) of the Act, the same principle can be extended to the period mentioned in Clause(b) of Proviso to Section 138 of the Act as well for the purpose of issuing notice. Since the point considered in Sivakumar v. Natarajan [(2009) 13 SCC 623], has been differently considered by the three Judges Bench in Econ Antri Limited v. Rom Industries Limited and Another [(2014) 11 SCC 769], that will prevail as it is a subsequent larger bench decision on the question of computation of period of limitation where the words “of” and “from” were used in the same section and whether any different interpretation is required for that purpose and whether Section 9 of the General Clause Act in such cases will be applied and held that Section 9 will applied and it will have to be interpreted in the same manner giving the same meaning.
The same question was considered by this court in Issac v. Reghunathan Chettiar (2015(3) KLT (SN) 42 Case No.56) and held that date of receipt of intimation from bank has to be excluded for sending notice under Section 138(b) of the Act. If these principles are applied, then the cause of action for sending notice will start from the next day of receipt of the intimation from the bank, namely, 13.07.1999 as the intimation was received on 12.07.1999 and the notice was issued on 27.07.1999 on the 15th day of receipt of intimation which is within time. So the finding of the court below that the notice issued is out of time is not sustainable in law in view of the discussions made above and the order of acquittal of the accused passed by the court below on that ground is not sustainable and the same is liable to be set aside and it has to be held that the notice sent is within time.
In view of the finding of this court that the evidence adduced on the side of the accused is not sufficient to rebut the presumption available under Section 139 of the Act, there is no necessity to remand the case for fresh disposal as evidence is already available on record. Further court below also found that the accused has failed to rebut the presumption and the complainant had proved the execution of the cheque and it was issued in discharge of a legally enforceable debt due from the accused to the complainant. The accused had no case that he paid the amount after receipt of notice. Once the complainant had proved that the accused had not paid the amount within 15 days of receipt of notice, then the offence under Section 138 of the Act is complete. So the finding of the court below that the accused is entitled to get acquittal is unsustainable in law in view of the discussions made above and the order of acquittal passed by the court below is liable to be set aside. So the order of acquittal passed by the court below is set aside and accused is found guilty for the offence under Section 138 of the Negotiable Instruments Act and he is convicted thereunder.
As regards the question of sentence is concerned, the case is of the year 2000 and the cheque is for an amount of Rs.55,000/-. In the decision reported in Damodar S. Prabhu v. Sayed Babalal H. [JT 2010 (4) (S.C.)457] the Supreme Court has held that, the case under Section 138 of the Negotiable Instruments Act is of civil nature but by introducing Section 138 in the Act, it has been given a criminal colour and the intention of the legislature is to see drawer is made to pay the amount to the payee. Further in the decision reported in Somanath Sarkar v. Utpal Basu Mallick [2013(4) KLT 350 (S.C.)], the Supreme Court has held that cases under Section 138 of the Negotiable Instruments Act, there is no provision for payment of compensation as such but court has got power to impose double the cheque amount as fine and out of the fine, the quantum of compensation payable can be fixed invoking 357(1)(b) of the Code of Criminal Procedure. Considering the fact that the case is of the year 2000, this court feels that fixing the fine amount of Rs. 60,000/- and imposing a default sentence of three months simple imprisonment and also substantive imprisonment till rising of the court and paying the entire fine amount if realised to be paid as compensation to the complainant will be sufficient and that will meet the ends of justice. So the accused is sentenced to undergo imprisonment till rising of the court and also to pay a fine of Rs. 60,000/-, in default to undergo simple imprisonment for three months. If the fine amount is realised the court below is directed to pay the entire fine amount to the complainant as compensation under Section 357(1)(b) of the code of Criminal Procedure. Three months time is granted to the accused to pay the amount, till then the execution of sentence is directed to be kept in abeyance. So the appeal is allowed and the order of acquittal passed by the court below is set aside and the accused is found guilty and convicted for the offence under Section 138 of the Negotiable Instruments Act and sentenced to undergo imprisonment till rising of the court and pay a fine of Rs. 60,000/- in default to undergo simple imprisonment for three months. If the fine amount is realised, the same be paid to the complainant as compensation under Section 357 (1)(b) of the Code of Criminal Procedure. Accused is granted time till 12.01.2016 to pay the amount, till then the execution of sentence is directed to be kept in abeyance. (Paras 9, 11, 16, 17, 18 & 19)
Result: Appeal allowed.
K. Ramakrishnan, J.—Complainant in S.T.No. 1502/2000, on the file of the Judicial First Class Magistrate Court-II, Thrissur, is the appellant herein. The case was taken on file by the magistrate on the basis of a private complaint filed by the complainant under Section 138 of the Negotiable Instruments Act, (hereinafter called ‘the Act’).
2. The case of the complainant in the complaint was that, the accused borrowed a sum of Rs. 55,000/- from the complainant and in discharge of that liability, he had issued Ext.P1 cheque drawn on District Co-operative Bank Ltd., Vadanappally Branch. The cheque when presented was dishonoured for the reason ‘funds insufficient’ in the account of the accused vide Ext.P2 dishonour memo and this was intimated to the complainant by his banker vide Ext.P3 letter. The complainant issued Ext.P4 notice vide Ext.P5 postal receipt and the same was received by the accused evidenced by Ext.P6 postal acknowledgment. He had not paid the amount. So he had committed the offence punishable under Section 138 of the Negotiable Instruments Act. Hence the complaint.
3. When the accused appeared before the court below, the particulars of offence were read over and explained to him and he pleaded not guilty. In order to prove the case of the complainant, the complainant himself was examined as PW1 and Ext.P1 to P6 were marked on his side. After closure of the complainant’s evidence, the accused was questioned under Section 313 of the Code of Criminal Procedure and he denied all the incriminating circumstances brought against him in the complainant’s evidence. He had further stated that, there was no transaction between the complainant and the accused and he was a subscriber of the chitty conducted by M/s. Lakshmi Chittis and Finances and when he bid the chitty, a blank signed cheque was given to them and the same was closed and misusing the cheque, the present complaint has been filed. In order to prove his case, the accused himself was examined as DW1 and Exts.D1 to D3 were marked on his side. After considering the evidence on record, the court below came to the conclusion that, notice was issued out of time and as such the complaint is not maintainable and the accused is entitled to get acquittal and acquitted him under Section 255(1) of the Code of Criminal Procedure. Aggrieved by the same, the present appeal has been preferred by the appellant /complainant along with Leave Petition Crl.L.P.No.694/2005 and the application was allowed and the leave was granted and then the appeal was admitted.
4. Heard Sri.Dilip J. Akkara, counsel appearing for the appellant and Sri.N.Subramanian, counsel appearing for the 1st respondent and Sri. Jibu P. Thomas, Public Prosecutor appearing for the 2nd respondent/ State.
5. The counsel for the appellant submitted that, the court below was not justified in holding that the notice issued is not proper and in fact the intimation was dated 12.07.1999. Notice was issued on 27.07.1999 and if the date of receipt of the intimation is excluded, then the notice is within time. Sending notice on the last date of expiry of time is proper and it will be deemed to be sent within time. So on that ground, the order of acquittal passed is not correct. Further the evidence adduced will go to show that the accused had not rebutted the presumption and his evidence is not sufficient to come to the conclusion that the cheque was not given to the complainant, but to some chitty company and misusing that cheque, the present complaint was filed. So the order of acquittal passed by the court below is not proper and court below ought to have convicted the accused and sentenced him for the offence under Section 138 of the Negotiable Instruments Act.
6. On the other hand learned counsel for the first respondent submitted that the court below was justified in relying on the decision reported in Madhu v. Omega Pipes Ltd (1994 (1) KLT 441) to come to the conclusion that notice issued is out of time and rightl
