M/S Radhesham Laxminarayan & Co vs Kashmirilal Harising Gupta & Anr
2016 Latest Caselaw 2031 Bom

                                                        Criminal Appeal No.801/2003
                                              1


                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                   BENCH AT AURANGABAD




                                                                               
                            CRIMINAL APPEAL NO.801 OF 2003




                                                       
     M/s Radhesham Laxminarayan and Co.,
     New Mondha, Jalna, a registered




                                                      
     partnership firm, through its partner
     Laxminarayan s/o Bansilal Agrawal
     Age 61 years, Occ. Business,
     R/o Nath Baba Galli, Jalna                ...   APPELLANT
                                         (Original Complainant)




                                         
          VERSUS

     1.
                             
              Kashmirilal s/o Harising Gupta,
              Age 50 years, Occ. Business,
              R/o Sadar Bazar, Jalna,
                            
              District Jalna
              At present R/o at Bharat Nagar,
              Baraf Girni, Near Shivaji Statue,
              New Jalna, District Jalna.
      


     2.       State of Maharashtra
              (Copy to be served on the
   



              Public Prosecutor, High Court of
              Bombay, Bench at Aurangabad)             ...  RESPONDENTS
                                                       (No.1 Orig. Accused)
                        .....





     Shri P.F. Patni, Advocate for appellant
     Ms Chinmayee Deshpande, Advocate for respondent No.1
     Shri S.M. Ganachari, A.P.P. for State
                        .....

                                     CORAM:       A.I.S. CHEEMA, J.





                                     DATED:       29th April, 2016.

                      Date of reserving judgment : 4th April 2016
                      Date of pronouncing judgment : 29th April 2016.

     JUDGMENT:

1. This is appeal against acquittal of respondent No.2

under Section 138 of the Negotiable Instruments Act, 1881 (Act

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in brief), filed by appellant - original complainant.

2. Complainant M/s Radhesham Laxminarayan &

Company is partnership firm and filed S.T.C. No.329/1994 in the

Court of Chief Judicial Magistrate, Jalna against respondent No.2

- accused (hereinafter referred as accused) as two cheques

issued by the respondent relating to purchase of grains had

bounced, and in spite of notice, the amounts of Rs.1 Lakh each of

the two cheques (total Rs.2 Lakhs) had not been paid.

3. The accused was convicted by the Chief Judicial

Magistrate, vide judgment dated 22.2.1995. The accused filed

Criminal Appeal No.8/1995, which came up before 2nd Additional

Sessions Judge, Jalna. The first appellate Court, vide judgment

dated 31.7.2003, acquitted the accused of the offence. Thus this

appeal.

4. Relevant facts are as follows :

(a) Respondent Kashmirilal s/o Harising Gupta is proprietor of

business known as "Kashmirilal Pramodkumar Agrawal".

(b) Complainant M/s Radhesham Laxminarayan & Co. is

partnership having partners Laxminarayan Bansilal Agrawal and

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his son Radhesham. It has business of commission agent at

Jalna Agricultural Produce Market Committee. Respondent -

accused is also in similar business. Green nuts i.e. Moong and

Udid grains were supplied to the respondent - accused on

13.9.1993 and 22.9.1993 for the price of Rs.2,82,680=44.

Accused issued four post dated cheques on 7.10.1993. First

cheque was dated 20.10.1993, second was dated 25.12.1993.

Those cheques of the total value of Rs.42,680/- got encahsed.

However, the third cheque No.0703658, dated 2.2.1994 (Exh.15)

for Rs.1 Lakh and the fourth cheque No.0703659 (Exh.16) dated

4.2.1994 of Rs.1 Lakh, when presented, were returned by the

Bank with memo mentioning, "exceeds arrangement" and

"referred to drawer". Complainant claimed that, on the advice of

accused, the cheques were again re-tendered, but were again

returned with similar remarks vide Bank memos (Exh.38 and 39)

on 10.2.1994. Complainant sent two telegrams and on the same

day of 10.2.1994, accused sent reply telegrams to the

complainant contending that the cheques had been issued as

advance cheques for goods yet to be supplied. Complainant sent

registered post A.D. notice through Advocate on 11.2.1994,

which was served on 15.2.1994.

5. The accused raised defence that the cheques were

not issued towards goods supplied, but were advance cheques for

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goods which were yet to be supplied and claimed that, as the

goods were not supplied, he was not liable for the payment of

the amounts.

6. The complainant examined eight witnesses and the

accused examined himself in defence. The trial Court found that

the complainant proved that on 2.2.1994 and 4.2.1994 accused

issued the above two cheques in favour of the complainant from

his Account of Jalna Peoples Cooperative Bank Ltd., Jalna. The

trial Court also found that when the cheques were presented

within validity period, the cheques were returned unpaid by the

Bank on the basis that the cheques exceeded the amounts

arranged or that there was insufficient amount in the Account.

Trial Court held that the complainant had made demand for

payment of the amount by giving notice in writing within 15 days

and that in spite of receipt of the notice, accused had failed to

make the payment.

7. The trial Court held the accused guilty and imposed

sentence of payment of fine of Rs.50,000/-, and in default, to

suffer simple imprisonment for three months.

8. When the accused carried the appeal to the first

appellate Court, the Sessions Court also found that the accused

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had issued the two cheques to the complainant against legally

recoverable debt. However, the Sessions Court held that the

service of the notice required to be issued under Section 138 was

not proved, and for such reasons, the Sessions Court proceeded

to acquit the accused.

9. When this appeal came up for hearing before me,

learned counsel for the appellant - complainant, referred to the

above facts and developments and submitted that now the

dispute has narrowed down only to the question - Whether or not

the notice had been served on the accused as per the

requirement of Section 138. The learned counsel for the

respondent also submitted that the only question now required to

be dealt with and decided was whether the notice and the

telegrams concerned had been duly served. The learned counsel

for the respondent contended that, although reply telegrams of

the accused were brought on record, the telegrams which were

sent by the appellant - complainant had not been brought on

record and proved. According to her, the notice was not duly

proved and the Sessions Court rightly acquitted the accused.

10. In view of the submissions which have been made

before me, I proceed to deal with the matter relating to the

limited dispute. The counsel for both sides agree that other

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aspects required to be complied by Section 138 of the Act had

been complied and there is no dispute regarding then. When for

legally enforceable debt or other liability the cheque is returned

unpaid by the Bank, the requirement is to give a notice.

Regarding this, clause (b) of proviso of Section 138 reads as

under :

(b) the payee or the holder in due course of

the cheque, as the case may be, makes a demand for the payment of the said amount of

money by giving a notice in writing, to the drawer of the cheque, within thirty days of the

receipt of information by him from the bank regarding the return of the cheque as unpaid .......

Keeping above provision in view, it would be now

appropriate to deal with the concerned evidence.

11. For the complainant, P.W.1 Laxminarayan deposed

(in para 6 of his evidence) that the above two cheques of the

accused were not encashed and, therefore, he issued notice to

the accused through his counsel. The notice is dated 11.2.1994

and the office copy bears signature of the Advocate. The

document is at Exh.17. P.W.1 deposed that the

acknowledgement receipt did not reach him and so, enquiries

were made with the postal authorities and the postal authorities

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issued intimation regarding service of the notice. P.W.1 also

proved two telegrams dated 10.2.1994 (Exh.18 and 19), which

were by way of reply from the accused to the telegrams issued

by the complainant.

12. There is evidence of P.W.3 Panditrao Padol, who was

working as Public Relations Inspector, Head Post Office, Jalna

since April 1994. From the official records maintained in ordinary

course, he brought delivery slip from his office, dated 15.2.1994.

He proved the document at Exh.31, showing at Sr.No.13 entry

regarding registered letter No.2184, addressed to "Kashmirilal

Pramodkumar". According to this witness, the document bears

signature of the addressee. According to the witness, the

document bears official seal of the post office and it is maintained

in official capacity and the contents were claimed by this witness

to be true and correct. He also proved acknowledgement slip

issued by the post office at Exh.32, which according to him bears

signature of the Assistant Post Master R.K. Mungi Paithankar. He

claimed that, he identifies the signature of the Assistant Post

Master as he is their staff member.

13. Then there is evidence of Advocate Navalchand Alijar

(P.W.8), who deposed that he had issued the notice Exh.17 to

the accused Kashmirilal Pramodkumar Agrawal by registered post

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A.D. He proved the postal money receipt Exh.45, which showed

that the addressee was "Kashmirilal Pramodkumar Agrawal".

This witness claimed that, when he did not receive the

acknowledgement from the addressee, he moved the post office

and Exh.31 was issued, which shows that the notice was

delivered to the addressee on 15.2.1994.

14. Regarding all this evidence brought on record by the

complainant to prove that notice in writing was issued to the

accused, in defence, the accused deposed that with regard to the

cheques Exh.15 and 16, he disclosed to the complainant that

payments against those cheques will be arranged on receipt of

delivery of goods. He deposed that, he did not receive the goods

and, therefore, he had no responsibility to arrange for the

payment in respect of cheques Exh.15 and 16. He deposed that,

he had received two telegrams from the complainant whereas he

gave reply to telegrams vide Exh.18 and 19. He further deposed

that, he did not receive any registered post A.D. notice from the

Advocate for complainant. Thus, regarding the registered post

notice, there is mere denial and regarding telegram, the accused

admitted to have sent replies Exh.18 and 19.

15. The trial Court accepted that the notice and

telegrams were duly served and that there was compliance of the

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above proviso of Section 138 regarding service of notice. The

above evidence, however, has been questioned by the Sessions

Court. The Sessions Court, in para 10 of its judgment, observed

that, there was no evidence on record to show as to on which

address the notice Exh.17 had been sent. It also observed that,

in Exh.31, the name of the accused has been shown as

"Kashmirilal Pramodkumar" although the name of the accused is

"Kashmirilal Harising". He referred to the evidence of the

accused, who had denied that he had signed the delivery list

Exh.31. The Sessions Court, in para 13 of its judgment repeated

its concern that the evidence on record revealed that the notice

was addressed to "Kashmirilal Pramodkumar Agrawal" when the

name of accused is "Kashmirilal Harising Gupta". It also

repeated that, the record did not show as to what was the

address to which the notice was sent. Thus, it concluded that the

notice was not duly sent to the correct name and address.

16. I will first take up the matter relating to telegrams

which were sent. The record contains Bank intimations Exh.18

and 19, which are dated 10.2.1994 informing the complainant

that the cheques could not be honoured. Thus, the cheques had

bounced. There is no dispute regarding the fact that the

complainant sent telegrams. The accused deposed that he sent

replies to the telegram. The reply telegrams are at Exh.18 and

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19, both bearing postal stamps dated 10.2.1994. These reply

telegrams are addressed to the complainant. I will reproduce the

contents of Exh.18. The contents are read as under :

"RECD TELEGRAM NO QUESTION OF

PAYMENT CHEQUE NO 0703658 JALNA COOPERATIVE PEOPLES BANK RS ONE LAC BECAUSE YOU GIVE ADVANCE CHEQUE TEN

DAYS BEFORE FOR SUPPLY MOONG 100 BAGS BUT YOU FAIL TO SUPPLY MOONG YET

PLEASE SUPPLY MOONG 100 BAGS AFTER PAYMENT CHEQUE ONE LAC

KASHMIRILAL PRAMODKUMAR"

17. The other telegram Exh.19 has similar contents

except for the cheque number. In Exh.19, the cheque number

referred is 0703659. Thus, although the trial Court has made

much of what witnesses stated while referring to the accused,

the accused himself, while sending the reply telegrams, put the

sender's name as "Kashmirilal Pramodkumar". It is true that the

copies of telegrams sent by him have not been obtained by the

complainant from the post office and on record there are only its

replies Exh.18 and 19. Although the learned counsel for the

respondent - accused argued that the telegrams are in dispute,

still the accused himself has deposed that he did send such reply

telegrams Exh.18 and 19. As regards submission of the learned

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counsel for the accused that the complainant did not bring on

record the copies of telegrams sent by the complainant, I do not

think it makes much difference when all the necessary particulars

can be seen from the reply telegrams. Sub-clause (b) of the

proviso of Section 18 only requires sending of "notice in writing".

It does not say that it should necessarily be by registered post

A.D. In the present matter, when it is an admitted fact that the

complainant, after the cheques bounced, did send telegrams,

looking to the replies Exh.18 and 19, I find that there is sufficient

compliance of the requirement of law that the complainant

should give notice in writing to the accused regarding bouncing

of the cheques. The cheques bounced on 10.2.1994. The

telegrams were given by the complainant immediately and on the

same day of 10.2.1994 accused sent replies Exh.18 and 19. The

accused failed to honour the cheques within 15 days of receipt of

the notice and the complaint came to be filed on 24.3.1994.

Although the accused is claiming that the complainant should

have filed copies of the telegrams he sent when it is an admitted

fact that the accused sent reply telegrams, the original telegrams

are in possession of the accused himself and the evidence which

is in the complete control of the accused has not been produced.

Had it been produced, it would be unfavourable to the accused

must be presumed. Illustrations (g), (h) and (i) of Section 114

of the Indian Evidence Act, when kept in view, show that a

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presumption can be raised against the accused that if he

produces the telegrams which he admittedly received, they would

not be in his favour. The argument of the counsel for accused

that the complainant should have got certified copies from the

post office has no substance. Ultimately they would still be copy

of the original.

18. In this matter, before the Sessions Court, the

accused has

demonstrated that, "Kashmirilal Pramodkumar

Agrawal" is a proprietorship, of which he is proprietor and his

name is "Kashmirilal Harising Gupta". On this basis, the accused

appears to have convinced the trial Court that, reference made to

"Kashmirilal Pramodkumar" may not be read as reference to him.

In the arguments before me also similar contentions have been

raised.

19. The words "proprietor" and "proprietorship" have

been defined in Black's Law Dictionary, 6th Edition as under :

"Proprietor : Owner of proprietorship. One who has the legal right or exclusive title to property, business, etc. In many instances it is synonymous with owner.

Proprietorship: A business which is owned by a person who has either the legal right and exclusive title, or dominion, or the ownership of that business. Shermco Industries, Inc. v. Secretary of U.S. Air Force, D.C. Tax., 452 F. Supp. 306, 314. A business, usually incorporated, owned and controlled exclusively by one person. Such a business is commonly designated a "sole proprietorship."

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20. If the above meaning of proprietor is considered, it

shows that, proprietor is owner of proprietorship. In instances it

is synonymous with the owner. In present matter, the owner of

the proprietorship concerned is "Kashmirilal Harising Gupta". He

has set up the proprietorship calling it "Kashmirilal Pramodkumar

Agrawal". At times he has referred to it by suffixing "M/s". His

own cheques, which are not in dispute, Exh.15 and 16, have

rubber stamps reading "For Kashmirilal Pramodkumar Agrawal"

with place for signature and rubber stamp further mentioning

"Proprietor". Thus, this accused has projected himself in the

market as owner of proprietorship called "Kashmirilal

Pramodkumar Agrawal". As the meaning of the word "proprietor"

itself shows the proprietorship in many instances is synonymous

with owner. With his first name Kashmirilal being common as an

individual and as proprietor, some confusion of the people

dealing with him may happen. The accused knows when he is

being addressed as an individual and when proprietorship is

being referred.

21. If Exh.17 is perused, the notice mentions the

addressee as under :

"To, Kashmirilal Pramodkumar Agrawal Prop.: Kashmirilal Harising Agrawal, New Mondha, Jalna."

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22. With the evidence of the complainant P.W.1 and

Advocate P.W.8 claiming that Exh.17 was sent to the accused

and there being further evidence of P.W.3 Panditrao Padol,

bringing documents from post office regarding service of the

notice, it is surprising to find the Sessions Court recording that

there is no evidence on record to show as to on which address

the notice was sent. In para 10 of its judgment and the

observations in para 13, the first appellate Court further confused

itself by observing that the notice was addressed to "Kashmirilal

Pramodkumar Agrawal" when the name of the accused is

Kashmirilal Harising Gupta. If the address on the notice Exh.17

is seen, it was addressed to Kashmirilal Pramodkumar Agrawal.

This is the name of the proprietorship. The business deal was

with the proprietorship, of which the proprietor is accused

Kashmirilal Harising Gupta. No doubt in the notice, in the name

of the proprietor, instead of "Gupta", "Agrawal" was typed.

However, merely by this confusion, the notice cannot be said to

be bad, because basically it was addressed to the proprietorship,

which the accused himself had projected to the market for his

business. The notice was correctly addressed to the

proprietorship which had issued the cheques and only because

there was error in the surname of proprietor, it cannot be said

that notice was not there. Exh.45 is the money receipt which is

issued by the post office at the time of booking by the registered

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post A.D. letter. That document also contains the name of the

addressee as Kashmirilal Pramodkumar Agrawal. The evidence

of P.W.5 Bank Manager also shows that the accused had opened

his account with the Bank in the name of what is referred as

"firm" mentioning the same to be Kashmirilal Pramodkumar

Agrawal. Accused projected the name of his business as

Kashmirilal Pramodkumar Agrawal. He opened Bank Account in

such name; issued cheques in such name and conducted

business using such name.

                              ig                In such situation, where the

     witnesses referred to accused as                Kashmirilal Pramodkumar
                            

Agrawal, the evidence has to be properly read so as to mean that

the witnesses were referring to the proprietorship projected by

the accused.

23. As per Exh.31 proved by P.W.3 Panditrao from Post

Office, the registered post A.D. notice was served on 15.2.1994,

which can be said to be in ordinary course of business. In Exh.

31, the addressee is referred as Kashmirilal Pramodkumar.

Although the accused denied that he has signed this document,

still this document is given from the records of the Post Office

maintained in ordinary course. The first appellate Court wrongly

ignored the evidence of P.W.3 claiming that he was posted at the

Post Office after 15.2.1994. Under illustration (e) of Section 114

of the Indian Evidence Act, official acts must he presumed to

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have been regularly performed. Looking to the document coming

from the record of the Post Office, official acts can be presumed

to have been regularly performed. It is not the case of the

accused that on 15.2.1994 he was not available at Jalna itself, or

that there is someone else of same name etc.

24. I find that, the trial Court rightly held that the notice

Exh.17 had been served on 15.2.1994. The observations of the

Sessions Court are not correct and the Sessions Court has

wrongly appreciated the evidence regarding notice Exh.17 and its

service. Calculated from the date of 15.2.1994 also, the

complaint filed must be said to be in time.

25. In the matter of C.C. Alavi Haji Vs. Palapetty

Muhammed and another, reported in (2007) 6 SCC 555, the

Hon'ble Supreme Court has held that, where accused claims not

to have received notice sent by past, but receives copy of

complaint with summons, he can, within 15 days of the receipt of

summons, make payment of the cheque amount and on that

basis request Court to reject complaint. Without doing this, he

cannot contend that there was no proper service. Looking to the

observations of the Hon'ble Supreme Court, even if the above

evidence of the telegrams as well as the registered post A.D.

notice Exh.17 is to be ignored the accused did not pay the

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amount within 15 days of receipt of summons of the trial Court.

Thus, the accused cannot avoid liability. He has to be held

guilty.

26. I find that, the complainant had given sufficient

notice to the accused not merely by sending registered post A.D.

notice but also by telegrams and the accused had knowledge

about bouncing of the cheque and still failed to pay. This being

so, the judgment of the trial Court was correct and the first

appellate Court wrongly interfered with the conviction.

27. In this matter, the trial Court has imposed only fine

of Rs.50,000/- although it found that the accused was liable to

pay the amount of cheques. In para 20 of its judgment, it held

that, "Complainant is legally entitle to recover the amount in

question i.e. Rs.2,00,000/-"

28. This matter was finally argued on 6.4.2016. At that

time, the learned counsel for the appellant had taken permission

to make further submissions in case he can find some rulings on

question of enhancement of sentence. Subsequently, on

12.4.2016, learned counsel for both sides were present and were

further heard as recorded in order dated 12.4.2016, with regard

to question of enhancement of sentence.

Criminal Appeal No.801/2003

29. Learned counsel for the appellant relied on the case

of Suganthi Suresh Kumar Vs. Jagdeeshan, reported in

(2002) 2 SCC 420. In that matter, the respondent therein had

drawn two cheques in favour of the appellant, which were

dishonoured. The amount covered by the cheques was

Rs.4,50,000/-. The trial Magistrate convicted the respondent

under Section 138 of the Negotiable Instruments Act, but

sentenced him only to undergo imprisonment till rising of the

Court and to pay a fine of Rs.5000/- in both the cases. The

appellant in that matter preferred revision to the High Court on

the premise that sentence was grossly inadequate and at least

Section 357(3) of the Code of Criminal Procedure should have

been invoked and compensation awarded. The High Court did

not interfere with the sentence although it observed that

Magistrate should keep in mind object of providing stringent

punishment and guidelines given by the Apex Court in

"Pankajbhai Nagjibhai Patel Vs. State of Gujarat", reported in

(2001) 2 SCC 595. When the matter came up before the Hon'ble

Supreme Court, the Hon'ble Supreme Court found that there was

no case for the respondent that the said amount had been paid

either during the pendency of the case before the trial Court or

the High Court or the Supreme Court. It was observed :

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" . . . If the amounts had been paid to the complainant there perhaps would have been

justification for imposing a flea-bite sentence as

had been chosen by the trial Court. But in a case where the amount covered by the cheque remained unpaid it should be the lookout of the

trial Magistrate that the sentence for the offence under section 138 should be of such a nature as to give proper effect to the object of the

legislation. No drawer of the cheque can be allowed to take dishonour of the cheque issued

by him light-heartedly."

The Supreme Court observed that, even if the

properties of the respondent had been attached in a civil suit in

that matter, still that was not a ground for lessening the gravity

of the offence or to impose minor sentence as was chosen by the

trial Court. In that matter, the Hon'ble Supreme Court remitted

back the matter to trial Court to hear both sides again in the

matter of sentence.

30. In the present matter, considering the facts of this

matter, I have heard learned counsel for both sides as regards

enhancement of sentence, in case the appeal happens to be

allowed. I am also keeping in view the submissions made by the

accused before the trial Court when sentence was to be passed.

The accused submitted that, he is running business in

Agricultural Produce Market Committee and has good reputation

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and that he did not have intention to cheat the complainant. He

had requested the trial Court to impose sentence of fine only.

Keeping these submissions also in view, I am considering the

present matter. I find that, if provisions of Section 138 of the

Negotiable Instruments Act are considered, it was permissible to

pass sentence of imprisonment for a term which could extend to

one year at the relevant time or with fine which could extend to

twice the amount of cheque or with both. If the trial Court

considered it appropriate not to pass sentence of imprisonment,

it would have been appropriate to consider the amount of

cheques which bounced and keeping in view reasonable interest,

further amount could have been calculated and fine could have

been accordingly ordered. The amounts of the appellant are

outstanding since the time the cheques bounced in February

1994. More than 20 years after that date, even if the amount of

Rs.2 Lakhs had been kept in Fixed Deposit, it would have

multiplied many folds. I find it appropriate that, sentence of fine

as per Section 138 of the Negotiable Instruments Act needs to be

passed. In fact, even that is on the lower side looking to the

time lapsed.

31. For above reasons, the Criminal Appeal is allowed.

with costs quantified at Rs.10,000/- (Rupees ten thousand) to

be paid by respondent No.1 to the appellant. The impugned

judgment and order passed by IInd Additional Sessions Judge,

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Jalna in Criminal Appeal No.8/1995 is quashed and set aside.

The judgment of conviction as passed by the Chief Judicial

Magistrate, Jalna in S.T.C. No.329/1994 is restored.

However, instead of the sentence of fine and compensation as

passed by the Chief Judicial Magistrate, following order is

substituted :-

The accused is sentenced to pay fine of

Rs.4,00,000/- (Rupees Four Lakhs) and in default, to suffer

simple imprisonment for three months. The amount of fine on

being deposited, the same shall be paid to the complainant as

compensation.

Amount already deposited, if any, by respondent -

accused, shall be adjusted in this amount of fine.

Respondent No.2 - accused shall surrender to his

Bail Bonds before Trial Court on 9th May 2016 and pay the

fine as directed. In default, Trial Court shall take steps to

ensure execution of sentence.

The criminal appeal is accordingly disposed of.

(A.I.S. CHEEMA, J.)

fmp/cri80103