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HIGH COURT OF TRIPURA AGARTALA
S. TALAPATRA, J.
Dr. Abhijit Choudhury - Appellant
Vs
Sri Chinmoy Sen – Respondent
Crl. A. No.25 of 2014
Decided on: 20.01.2015
Section 138 of the NI Act - Service of Notice - 138(4) - 138 - 114 - 27
Fact of the Case:
The appellant filed an appeal against the judgment and order of acquittal delivered in a case where the respondent had issued cheques that were dishonored, leading to a complaint filed against the respondent for an offense punishable under Section 138 of the NI Act. The trial court formulated four points for determination related to the dishonor of the cheques, demand for payment, receipt of demand notice, and the compulsory service of demand notice.
Finding of the Court:
The trial court found that the cheques were dishonored, the demand notice was sent to the address of the accused person, and the accused person did not receive the notice. However, the trial court held that the service of notice on the accused person's wife cannot be treated as compliance with the mandate of law, based on the decision in M.D. Thomas vs. P.S. Jaleel. The appellate court found that the notice sent by registered post to the accused's address and received by his wife should be deemed as properly served, and remitted the matter back to the trial court for a fresh judgment.
Issues: The issues revolved around the dishonor of cheques, demand for payment, receipt of demand notice, and the compulsory service of demand notice under Section 138 of the NI Act.
Ratio Decidendi: The appellate court held that the notice sent by registered post to the accused's address and received by his wife should be deemed as properly served, based on the provisions of Section 27 of the General Clauses Act and Section 114 of the Evidence Act. The court also emphasized the duty of the trial court to consider relevant decisions and give reasons for not following the principles laid down in such decisions.
Final Decision: The appeal was allowed, and the matter was remitted back to the trial court for passing a fresh judgment in accordance with the law as interpreted by the appellate court.
Certainly. Based on the provided legal document, the main legal point established in the judgment is that service of notice sent by registered post to the accused's address and received by his wife should be deemed as properly served. This conclusion is grounded in the provisions of Section 27 of the General Clauses Act and Section 114 of the Evidence Act. The court emphasized that when a notice is correctly addressed and sent via registered post, the presumption of proper service arises unless the accused can rebut this presumption by providing evidence to the contrary (!) (!) .
Furthermore, the judgment clarifies that the receipt of the registered notice by the wife at the same address as the accused is sufficient to establish that the notice was effectively brought to the knowledge of the accused. The trial court's earlier conclusion that the notice was not properly served because it was received by the wife and not directly by the accused was found to be legally incorrect. The appellate court held that, in the absence of evidence rebutting the presumption, it must be presumed that the notice was delivered and brought to the knowledge of the accused (!) .
The court also underlined the importance of considering relevant statutory provisions and legal principles concerning the service of notices, especially when sent by registered post, and the application of presumption under the Evidence Act and the General Clauses Act. It further directed that the matter be remitted back to the trial court for passing a fresh judgment consistent with this interpretation (!) .
1. By this appeal filed under Section 378(4) of the Cr.P.C. the judgment and order of acquittal dated 30.08.2014 delivered in case No.NI 61 of 2013 by the Additional Chief Judicial Magistrate, West Tripura, Agartala has been questioned.
02. The respondent No.1 took a loan from the appellant to the extent of Rs.5,00,000/(Rupees five lacs) by three cheques and all those cheques were encashed on 14.01.2013 on assurance that the respondent No.1 shall make the payment within the next five days to the appellant. On 18.01.2013 the respondent No.1 gave two cheques bearing No.007736 for Rs.3,00,000/and No.007735 for Rs.2,00,000/to the appellant for discharging his liability of loan, but when the complainant deposited those cheques in his account, maintained in the UBI, Kaman Chowmuhani Branch for encashment on 18.02.2013, both the cheques were dishonoured for insufficiency of fund. On 18.03.2013, within the statutory period of the knowledge of such dishonour, the appellant sent the notice, in terms of clause (b) to Section 138 of the NI Act, by the registered post and the wife of the respondent No.1 received the said registered notice in the residence of the respondent No.1 on 19.03.2014. The respondent No.1 did not make any payment and a complaint has been filed against the respondent No.1 for committing offence punishable under Section 138 of the NI Act.
03. In due course, the substance of accusation under Section 251 of the Cr.P.C. was stated to the respondent No.1 but the respondent No.1 denied such accusation on pleading innocence. The appellant herein introduced all the relevant facts in the evidence as PW1 and also introduced as many as 11 documents in the evidence including the dishonoured cheques, the memorandum dated 08.03.2013 apprising the dishonour of the cheques, the postal receipt dated 18.03.2013, the acknowledgment card containing the signature of the wife of the accused, the demand notice dated 18.03.2013, the second postal receipt dated 18.03.2013, the acknowledgment card having signature of unidentified persons, the savings bank account No.10915323350 maintained in the SBI, Melarmath Branch showing that the respondent No.1 encashed the cheques issued by the appellant and finally the Savings Bank Account maintained in the UBI, Kaman Chowmuhani Branch by the appellant (Exbt.1 to 11). The respondent No.1, the accused in the said criminal proceeding, did not adduce any evidence.
04. After recording the appellant’s evidence when the respondent No.1 was examined under Section 313 of the Cr.P.C. he denied those incriminating materials surfaced in the evidence and pleaded his innocence once again. The trial court formulated four points for determination, which are as follows:
“(i) Whether the cheques vide No.007735 and 007736 were dishonoured when properly presented for encashment;
(ii) Whether the payee made a demand for payment of Rs.5,00,000/to the accused person within 30 days of dishonour of the cheque;
(iii) Whether the accused person received demand notice issued by the payee;
(iv) Whether the service of demand notice upon accused is compulsory in such a case.”
05. On appreciating the evidence the trial court has unequivocally decided that the cheques bearing No.007735 and 007736, Exbt.2 and Exbt.1 respectively, “were indeed dishonoured when presented for encashment”. The trial court has also observed that “Therefore, on appreciation of evidence on record it appears that the complainant sent demand notice to the address of accused person.” But while deciding whether the accused person, the respondent No.1 herein, received the demand notice issued by the appellant, it has been observed that “I find that the accused person sent demand notice to the accused person both in his official as well as on his residential address. The notice sent to residential address was received by wife of the accused person. The other notice was received by an unidentified person, and the identity of the said receiver was never discl
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