M/S.Purohit Cement ... vs Satyanarayan Ramnath Gupta
2017 Latest Caselaw 5943 Bom

                                              1


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

                     CRIMINAL APPEAL NO.302 OF 2002


 M/s. Purohit Cement Pvt. Ltd.,
 A Company duly registered under 
 the Indian Companies Act, 1956, 
 having its registered Office at 
 New cotton Market Road, Nagpur, 
 acting through its Managing Director 
 Shri. Rakesh S/o. Banwarilal Purohit.                       ....... APPELLANT


                  ...V E R S U S...


 Satyanarayan Ramnath Gupta,
 Aged Major, Occ. Business,
 R/o. Nagbhid, District Chandrapur.                          ......   RESPONDENT

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          Mr. S.V. Bhutada, Counsel for appellant.
          Mr. C.N.Funde, Counsel for respondent
 -------------------------------------------------------------------------------------------

                                   CORAM:            ROHIT B. DEO, J. 

                                   DATE:                th
                                                     16    AUGUST, 2017.


 ORAL JUDGMENT

1. Heard the learned Counsel Shri. S.V. Bhutada for the

appellant and Shri. C.N. Funde for the respondent. The appeal

seeks to assail the judgment and order of the Judicial Magistrate

First Class, Court 1, Nagpur in Criminal Complaint Case 494 of

1998 by and under which the respondent - original accused stands

acquitted for charge under Section 138 of the Negotiable

Instruments act, 1881.

2. With the assistance of the learned counsel for the

appellant and the respondent, I have carefully scrutinized the

record. Shri. Bhutada would submit that the learned Judge of the

trial Court has committed a serious error of law in refusing to

draw the presumption under Section 114(f) of the Indian Evidence

Act and Section 27 of the General Clauses Act,1897. He invites

my attention to the postal endorsements on the envelope by and

under which the statutory notice was sent to the accused. The

endorsements are "absent", "out of station", "left address not

known". The aforesaid endorsements have been made on

20.8.1998, 21.8.1998 and 28.8.1998, respectively. Shri. S.V.

Bhutada invites my attention to the judgment of the Hon'ble

Supreme Court in C.C. Alavi Haji Vs. Palapetty Muhammed &

Others, (2007)6 SCC 555 and in particular to the following

observations:-

"13. According to Section 114 of the Act, read with Illustration (f) thereunder, when it appears to the court that the common course of business renders it probable that a thing would happen, the court may draw presumption that the thing

would have happened, unless there are circumstances in a particular case to show that the common course of business was not followed. Thus, Section 114 enables the court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. Consequently the court can presume that the common course of business has been followed in particular cases. When applied to communications sent by post, Section 114 enables the court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. But the presumption that is raised under Section 27 of the GC Act is a far stronger presumption. Further, while Section 114 of the Evidence Act refers to a general presumption, Section 27 refers to a specific presumption. For the sake of ready reference, Section 27 of the GC Act is extracted below:

"27. Meaning of service by post - Where any Central Act or Regulation made after the commencement of this Act authorities or requires any document to be served by post, whether the expression 'serve' or either of the expression 'give' or 'send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the country is proved, to have been effected at the time at which the

letter would be delivered in the ordinary course of post."

"14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement "refused" or "not available in the house" or "house locked" or "shop closed" or "addressee not in station", due service has to be presumed. (Vide Jagdish Singh v. Natthu Singh; State of M.P. v. Hiralal and V. Raja Kumari v. P. Subbarama Naidu.) It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved."

"15. Insofar as the question of disclosure of necessary

particulars with regard to the issue of notice in terms of proviso (b) of Section 138 of the Act, in order to enable the court to draw presumption or inference either under Section 27 of the GC Act or Section 114 of the Evidence Act, is concerned, there is no material difference between the two provisions. In our opinion, therefore, when the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of Clause (b) of the proviso to Section 138 of the Act stands complied with. It is needless to emphasise that the complaint must contain basic facts regarding the mode and manner of the issuance of notice to the drawer of the cheque. It is well settled that at the time of taking cognizance of the complaint under Section 138 of the Act, the court is required to be prima facie satisfied that a case under the said section is made out and the aforenoted mandatory statutory procedural requirements have been complied with. It is then for the drawer to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the cover was incorrect or that the letter was never tendered or that the report of the postman was incorrect. In our opinion, this interpretation of the provision would effectuate the object and purpose for which proviso to Section 138 was enacted, namely, to avoid unnecessary hardship to an honest drawer of a cheque and to provide him an opportunity to make

amends."

3. Shri. Bhutada learned counsel for the appellant would

submit that the reasoning of the trial Court as is discernible from a

perusal of paragraph 15 of the judgment impugned clearly

militates against the exposition of law in Alavi Haji Vs. Palapetty

Muhammed & Others. He would further submit that it is not in

dispute that the accused was served the summons of the case on

the address on the registered envelop by and under which

statutory notice was attempted to be served.

4. Per contra, Shri. Funde the learned counsel for the

respondent would urge that there is no material on record to

suggest that the cheque was presented to the bank within the

validity period of six months. Shri. Funde places reliance on

judgment of the Hon'ble Supreme Court Shri. Ishwar Alloy Steels

Ltd. Vs Jayaswals Neco Ltd, 2001(3) Mh. LJ 1.

5. Shri. Funde further submits that the finding recorded

by the learned trial Court that the service of statutory notice is not

proved is unexceptionable. He would further invite my attention

to the settled legal position that in exercise of appellate

jurisdiction this Court would ordinarily not interfere unless the

judgment impugned is perverse. The learned counsel Shri.Funde

would submit that the view taken by the learned trial Court is

plausible and possible view and is certainly not perverse. I am

conscious of the certain legal position that unless the view taken

by the learned Judge of the trial Court is perverse, ordinarily this

Court should not interfere with a judgment of acquittal.

6. I am, however, persuaded to accept the alternate

submission of the learned counsel for the appellant Shri. Bhutada

that the matter should be remitted to the trial Court.

7. It is apparent from the record that the presentation of

the cheque beyond the validity period was made an issue only at

the stage of final arguments. No evidence appears to have been

adduced by either the complainant or the accused to bring on

record the date on which the cheque was presented. It would be

appropriate, if both the complainant and the accused are given

liberty to lead evidence before the learned trial Court on the

aspect of the date on which the cheque came to be presented since

that would go to the root of the complainant's case. The other

compelling reason why I am impelled to remit the matter is the

obvious error of law which the learned trial Court has committed

in considering the import and implication of Section 27 of the

General Clauses Act.

8. I would refrain from making any further observation

lest the complainant or the accused is prejudiced. Suffice it to say,

that the learned trial Court would be expected to record finding on

whether the registered envelope was properly addressed and

further on the import and implication of the postal endorsements

and the permissibility of invoking the presumption under Section

27 of the General Clauses Act, consistent with the exposition of

law by the Hon'ble Supreme Court in Alavi Haji Vs. Palapetty

Muhammed & Others.

Appeal is partly allowed.

The proceedings are remitted to the learned trial Court for fresh decision in accordance with law.

Needless to say, both the accused and the complainant are at liberty to adduce such further evidence, documentary and oral as they may be advised. The learned trial Court shall decide the case afresh consistent with the observations in this judgment.

Both the learned counsels agree that their respective clients shall appear before the learned trial Court, personally or through

counsel on 15.9.2017. The learned trial Court is requested to complete the trial as expeditious as possible and preferably within a period of six months from the date of appearance of the parties.

The record and the proceedings be sent back to the learned trial Court, forthwith.

JUDGE

Belkhede