2018 Supreme(P&H) 1747
ARVIND SINGH SANGWAN
Raj Kumar Batra – Appellant
Versus
Urmila Devi – Respondent
Advocates:
Advocate Appeared:
For the Appellant :Mr. Kunal Dawar, Advocate
For the Respondent:Mr. Lalit Kumar Advocate for Mr. Johan Kumar, Advocate
Judgement Key Points
- The appellant filed a complaint under Section 138 of the Negotiable Instruments Act alleging that the respondent borrowed Rs.68,000/- in October 2008, promised repayment by March 2009, issued a cheque dated 10.05.2009 for Rs.68,000/- drawn on Punjab National Bank, which was dishonored on 18.05.2009 due to insufficient funds, and failed to pay after receiving legal notice dated 20.05.2009 or 23.05.2009. [23000663470001][23000663470002][23000663470004]
- The appellant presented preliminary evidence including affidavit Ex.CW1/A, cheque Ex.C1, bank memo Ex.C2, legal notice Ex.C3 dated 23.05.2009, and postal receipt Ex.C4. [23000663470003][23000663470004]
- The respondent, in her statement under Section 263(g) Cr.P.C., admitted borrowing some amount (Rs.15,000/-) but claimed she repaid Rs.8,000/-, issued a blank signed cheque as security, received three blank cheques and signatures on blank pages from her, and denied receiving the legal notice. [23000663470005][23000663470006]
- The trial court dismissed the complaint holding that the legal notice was invalid due to lack of signature by the appellant's counsel and was not served properly as it was sent only to the first address, not the second. [23000663470008]
- The appellant provided two addresses for the respondent: (1) Gali No.9, Hanuman Nagar, Nehar Paar, Faridabad; (2) Sumit Welding Works, Kheri Road, Nehar Paar, Faridabad; and sent notice via registered post to the residential address with postal receipt Ex.C4. (!) (!) [23000663470010][23000663470011]
- No suggestion in cross-examination that the respondent did not reside at the address or did not receive the notice; appellant affirmed sending notice to residential address on 23.05.2009. (!) [23000663470012]
- Trial court summons were served at the same residential address: husband received one on 23.10.2009, respondent personally on 14.03.2010. [23000663470013][23000663470014]
- Respondent did not deny issuing the cheque or her signature, only claimed it was security for Rs.15,000/- loan (not Rs.68,000/-), but led no defense evidence. [23000663470016] (!) (!) (!)
- Trial court erroneously stated respondent examined herself as DW-1, but no such evidence exists. (!)
- Non-signing of notice by counsel does not invalidate it if sent to correct address via proven mode (registered post), contains full details of dishonor and demand, and service is established; notice reached as summons were served there later. [23000663470017][23000663470024][23000663470025][23000663470026][23000663470027] (!)
- Under Section 138(b) and Section 94 of the Negotiable Instruments Act, notice need not be signed by party or advocate if mode of service is proven and it informs of dishonor; oral or written notice via post suffices. [23000663470026][23000663470027]
- Presumption under Section 138 favors holder upon proving issuance and dishonor; respondent's defenses unsubstantiated. (!)
- Appeal allowed; matter remanded to trial court for fresh decision after parties lead evidence. [23000663470023][23000663470028]
JUDGMENT :
ARVIND SINGH SANGWAN, J.
CRM-A-629-MA-2014
1. Leave to appeal is granted. Registry is directed to number as main appeal.
Main appeal
2. Prayer in this appeal is to set aside the judgment dated 27.01.2014 vide which the complaint filed by the appellant under Section 138 of the Negotiable Instruments Act (for short 'the Act') was dismissed and the respondent-accused was acquitted of the charge.
3. Brief facts of the case are that appellant-Raj Kumar Batra filed a complaint under Section 138 of the Act against respondent- Urmila Devi with the allegations that in the month of October, 2008 she had borrowed a loan of Rs.68,000/- and promised to repay the same in the month of March, 2009. On repeated requests of the appellant, the accused, after admitting her liability, issued a cheque bearing No. 020545 dated 10.05.2009 for Rs.68,000/-, drawn on Punjab National Bank. The appellant presented the said cheque in his Bank and the same was returned on 18.05.2009 with the remarks 'Insufficient Funds'. Thereafter, the complainant issued a legal notice dated 20.05.2009 and the accused despite receiving the notice has failed to pay the amount within a stipulated period of 15 days.
4. In prel
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