Bombay High Court
Mr. Pierre Antonio Lobo vs Mr. Jose Remedios A.A. Rodrigues on 26 September, 2025
Author: Bharati Dangre
Bench: Bharati Dangre
2025:BHC-GOA:1842 CRIA 55,56 OF 2014.ODT
2025:BHC-GOA:1842
Esha
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL APPEAL NO. 55 OF 2014
Mr. Pierre Antonio Lobo, 54 years of age,
son of Domnic L.B. Lobo, major,
businessman, Resident of Flat No. 4,
Rahul Apts., Alto Porvorim, Bardez, Goa.
Presently residing at Periwinkle Villa,
Chogm Road, Behind Wireless Building,
Alto Pilerne, Porvorim, Bardez, Goa. ... APPELLANT
VERSUS
1. Mr. Jose Remedios A.A. Rodrigues,
45 years, businessman, resident of
B-4, Riveira Residency, PDA Plots,
Alto Provorim, Bardez, Goa.
2. The State of Goa, through the Public
Prosecutor, High Court of Bombay
at Goa, Altinho, Panaji-Goa. ... RESPONDENTS
WITH
CRIMINAL APPEAL NO. 56 OF 2014
Mr. Pierre Antonio Lobo, 54 years of age,
son of Domnic L.B. Lobo, major,
businessman, resident of Flat No. 4, Rahul
Apts., Alto Porvorim, Bardez, Goa.
Presently residing at Periwinkle Villa,
Chogm Road, Behind Wireless Building,
Alto Pilerne, Porvorim, Bardez, Goa. ... APPELLANT
VERSUS
1. Mr. Jose Remedios A.A. Rodrigues,
45 years, businessman, resident of
B-4, Riveira Residency, PDA Plots,
Alto Provorim, Bardez, Goa.
2. The State of Goa, through the Public
Prosecutor, High Court of Bombay
at Goa, Altinho, Panaji-Goa. ... RESPONDENTS
*****
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CRIA 55,56 OF 2014.ODT
Mr. Dhaval Zaveri with Mr. Harshal Dessai, Advocates for
the Appellant.
Mr. Arjun F. Naik with Ms. Kavita Naik, Advocates for
Respondent No. 1.
Mr. Gaurish Nagvenker, Additional Public Prosecutor for
Respondent No. 2.
CORAM: BHARATI DANGRE, J.
RESERVED ON: 11th JULY 2025
PRONOUNCED ON: 26th SEPTEMBER 2025
JUDGMENT:
1. These two Appeals arise out of two judgments delivered by
Additional Sessions Judge, Mapusa in Criminal Appeal No. 68 of
2012 and Criminal Appeal No. 80 of 2010, which has reversed the
judgments passed by the Judicial Magistrate First Class in the two
distinct criminal cases, which had convicted the Accused for the
offence punishable under Section 138 of Negotiable Instrument
Act, 1881 (N.I. Act) and sentenced him to undergo imprisonment
and also to pay a distinct amount of compensation under Section
357(3) of the Code of Criminal Procedure.
Upon the Appeal being preferred by the Accused, the
Additional Sessions Judge, Mapusa, reversed the findings
rendered by the Magistrate by holding that the Complainant had
failed to prove that the cheques issued by the Accused were
towards legally enforceable debt, and also on the ground that the
JMFC had erred in holding that the legal notice of dishonour of
cheque was received by the Accused.
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2. I have heard Advocate Dhaval Zaveri along with Advocate
Harshal Dessai for the Appellant in both the Appeals, whereas
Respondent No. 1 in both the Appeals is represented by Advocate
Arjun Naik along with Advocate Kavita Naik.
The State of Goa is represented by the Additional Public
Prosecutor, Mr. Gaurish Nagvenker.
3. In order to appreciate the arguments advanced before me, I
must refer to the background facts.
The parties to the proceedings are one, Mr. Pierre Antonio
Lobo, the Complainant/the present Appellant, and Mr. Jose
Remedios, A.A. Rodrigues, the Accused is the Respondent No. 1.
By an Agreement for Management dated 18.06.2008, Pierre
Antonio Lobo, [hereinafter referred to as 'Lobo'], allowed the
Accused Jose Remedios Rodrigues [hereinafter referred to as
'Jose'] to manage his Restaurant styled as "Don Hill Beach
Resort", situated at Candolim, Bardez, Goa, initially, for a period
of 12 months, from 01.11.2008 to 31.10.2009.
Mr. Lobo being the exclusive owner in possession of the
property, being run as a Resort and registered with the
Department of Tourism with a Bar and Restaurant situated on the
ground floor, along with excise license to serve liquor, was handed
over to the Manager Management Control on a monthly
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compensation of Rs.2,08,333.33, which was agreed to be paid on
the first day of every month. As a part of the agreement, Jose, who
was appointed as Manager, handed over post-dated cheques for
the entire period of 12 months after deduction of tax at source.
In addition to the above compensation, it was agreed that
the Manager shall be liable to pay an annual fee of Rs.5 lakhs for
using the plant and machinery and other fixtures, and the amount
to be paid by him to the owner, for each term of 12 months, the
management being in control of the said premises.
4. According to the Complainant, Lobo, the Accused defaulted
in making the payment, as on all occasions when the cheques were
deposited, they were dishonoured for insufficient funds, and the
payment which was due was made by him subsequently in parts,
after a prolonged period.
On account of the relationship shared, the Accused, Jose,
sought a personal loan from Lobo in two different sums, and on
25.02.2009, a personal loan of Rs.4 lakhs was sought so as to
enable him to pay his creditors and also to clear the outstanding
bills with an assurance that the same shall be repaid to the
Complainant along with interest. The Accused also issued a post-
dated cheque in the sum of Rs.4 lakhs drawn on Canara Bank,
Candolim Branch on 16.03.2009 for repayment of the said
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amount, with a request not to deposit the said cheque till the end
of June 2009.
Another loan in the sum of Rs.8 lakhs was requested from
the Complainant, and for its repayment, a post-dated cheque
drawn on HDFC Bank Limited dated 28.04.20210 in the sum of
Rs.8 lakhs was also handed over to the Complainant, with a
similar request not to deposit the cheque till the end of June 2009.
There arose some differences between the Complainant and
the Accused, resulting in termination of the agreement for
management by notice dated 24.06.2009.
5. The Appellant deposited the cheque dated 16.03.2009 of
Rs.4 lakhs, drawn on Canara Bank on 08.07.2009, whereas he
deposited the cheque of Rs.8 lakhs drawn on HDFC Bank Limited
on 29.07.2010.
Both the cheques could not be honoured and therefore, two
demand notices were issued. In respect of the dishonour of cheque
of Rs.4 lakhs, a demand notice was sent on 18.07.2009 to the
Accused, asking him to make the payment within 15 days of the
receipt of the notice and this notice, according to the Complainant,
is received by the Accused on 29.07.2009, but since the Accused
failed to make the payment under the cheque amount, he filed a
complaint under Section 138 of the N.I. Act before the JMFC,
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Mapusa, on 27.08.2009, which was numbered as Private Criminal
Complaint No. 626/2009/B.
On the cheque of Rs.8 lakhs being dishonoured on ground
of "funds insufficient", another legal notice was addressed to the
Accused on 03.08.2010, informing that the cheque dated
28.04.2010 issued by him was dishonoured and calling upon him
to make the payment within a period of 15 days. However, since no
payment was received, a complaint was instituted before JMFC,
Mapusa through Private Criminal Complaint No. 785/2010/F on
13.09.2010.
6. On the distinct cases being registered before the JMFC,
Mapusa, the substance of accusation was conveyed to the Accused,
Mr. Lobo, which had a reference to the cheques issued by him and
about the cheques being dishonoured, resulting into issuance of
demand notices, which were alleged to be "served on him", but
since there was failure and neglect to either reply to the notices or
pay the cheque amounts, he was accused of committing an offence
under Section 138 of the Negotiable Instruments Act, 1881, within
his cognizance, to which, the Accused pleaded not guilty.
In both the cases, the Complainant examined himself as
PW-1 along with the Manager of the respective Banks being
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examined as PW-2. In Criminal Case 785/2010/F, the Postman
was examined as PW-4.
7. In both cases, the Magistrate determined the issue whether
the Complainant had proved that the Accused had issued the
cheques towards a legally enforceable debt, and also determined
the point whether the Complainant had proved that the demand
notice was issued and received by the Accused, and he had failed
to make the payment despite receipt of the notice.
Referring to the presumption under Section 139 of the N.I.
Act in respect of a legally enforceable debt in favour of the
Complainant and holding that the burden of proving is on the
Accused, it was held that this burden was not rebutted by the
Accused as he did not step into the witness box as the standard of
proof on him is based on preponderance of probability and it was
open for him to bring on record certain facts which would create a
doubt as he is not duty bound to prove the case beyond doubt.
8. On consideration of the evidence of the Complainant as well
as the Manager of the Banks, the first point was answered by the
Magistrate holding that the Accused had issued the cheque
towards a legally enforceable debt to the Complainant, which the
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Complainant has proved by examining himself as well as the
Managers from the Bank.
As regards the point about the legal notice being sent and
received, the Magistrate in Criminal Case No. 626/2009/B i.e.
relating to the cheque amount of Rs.4 lakhs, a finding was
rendered that the Accused received the legal notice on 29.07.2009,
but he did not pay the amount under the cheque to the
Complainant and the Complainant had proved the necessary
ingredients of Section 138 of the N.I. Act, being drawing of cheque,
presentation of the cheque to the bank, returning of the cheque
unpaid by the drawing Bank, giving of notice in writing to the
Drawer demanding the amount and failure of the Drawer to make
the payment. Since it was held that each and every ingredient of
the offence was proved by the Complainant, the Accused was
sentenced for the offence punishable under Section 138 of the NIA
Act.
9. As far as the judgment in Criminal Case No. 785/ 2010/F is
concerned, involving the cheque in the sum of Rs.8 lakhs, the
Postman, Mr. Rajan Sawal, was examined as PW-4, who had
deposed that he had delivered the envelope at the residence of the
concerned party and obtained the signature of the party who had
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received the envelope on the A.D. card and exhibited the same at
Exhibit-E.
In cross examination, he admitted that the envelope was
handed over to a girl, aged 15, and the relationship between the
Accused and the girl was not proved and therefore, despite these
circumstances, by making reference to Section 27 of the General
Clauses Act, 1897 the Magistrate held that the Complainant has
discharged the duty of sending the legal notice to the correct
address of the Accused under certificate of posting, and if the
Accused claims that he has not received the legal notice, it is for
him to prove the non-service, in order to rebut the presumption
under Section 27 of the General Clauses Act, 1897 but since no
evidence was led by the Accused to rebut the presumption, the
point no. 2 was answered in the affirmative.
10. Upon two separate Appeals being filed being aggrieved by
the conviction and sentence in two cases, by the Accused, Jose, in
the form of Criminal Appeal No. 68/2012 and Criminal Appeal No.
80/2010, the same Judge, decided both the Appeals in his capacity
as an Additional Sessions Judge, Mapusa, however, reversed the
finding of the Magistrate in both cases and acquitted the Accused
of the offence punishable under Section 138 of the N.I. Act, 1881.
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While deciding the Appeals, the Appellate Court answered
both the points argued on behalf of the Accused in the positive,
namely; (a) Had the JMFC erred in holding that the Complainant
had proved that the Accused had issued the cheque of Rs.8 lakhs
towards the legally enforceable debt and (b) Had the learned
JMFC erred in holding that the Complainant had proved that the
demand notice was received by the Accused.
Both the points being answered in the affirmative and in
favour of the Accused, the finding of conviction and the sentence
imposed was set aside by recording that the JMFC has erred on
both the points, as the Accused, by raising a reasonable and
probable defence that he had not at all received any loan from the
Complainant, and as such, he was not owing the said amount, was
held to have rebutted the presumption under Section 139 of the
N.I. Act, and it was held that the Complainant had failed to prove
that he had, in fact, advanced the loan to the Accused.
As regards the point about sending legal notice to the
Accused by Registered A.D. card and also under the certificate of
posting, with a denial from the Accused that he has received the
notice, the Appellate Court agreed with the Counsel for the
Appellant in submitting that the notice sent by Registered A.D. on
the address of the Accused has not been proved to have been
delivered to the Accused and it does not lead to the presumption
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that the notice was served and therefore, it was held that the
finding of the Magistrate was erroneous on that count also.
11. The learned Counsel, Mr. Zaveri, representing the
Appellant, the original Complainant, has urged before me that
both the impugned judgments reversing the finding of the Trial
Court and setting aside the conviction have failed to take into
consideration the presumption under Sections 113 and 139 of the
N.I. Act read with Section 27 of the General Clauses Act and also
under Section 114 of the Indian Evidence Act. He would submit
that these presumptions were sought to be rebutted by merely
putting questions to the Appellant in his cross-examination to the
limited extent, and the incriminating circumstances were only
explained under Section 313 of Cr.P.C., which received bare
denials. He would submit that the controversy revolves around the
legal notice with the A.D. card, which is signed by the Accused,
and no specific defence is led by the Accused by entering into the
witness box, rebutting the said case pleaded by the Complainant
and proved by stepping in the witness box. According to him, the
complaint containing the averments along with the
acknowledgment A.D. receipt signed on 29.07.2009, in one case,
and with the evidence of the Postman in another case, was
sufficient to surpass the muster of Section 138(b) and 138(c), for
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the Complainant to maintain the said complaint under Section
138(a).
12. During the course of argument, since this appeared to be the
focal point, I indicated to the learned Counsel to canvass his
arguments on this aspect and if he is able to establish that the
findings rendered by the Appellate Court, cannot be sustained, the
other point about the cheque being issued towards discharge of
the legal liability along with the presumption under the N.I. Act
shall be considered.
Mr. Zaveri, therefore, advanced his submissions on this
aspect by submitting that the Accused did not dispute that the
notices were not received by him, and he did not even dispute his
signature by entering into the witness box. Relying upon the
presumption under the N.I. Act read with Section 27 of the
General Clauses Act, 1897 and Section 114 of the Indian Evidence
Act, 1872, Mr. Zaveri would submit that it was for the Accused to
rebut the presumption as regards the presumption about the legal
notice being duly received by him.
13. Mr. Zaveri would place reliance upon the decision of the
Apex court in the case of Uttam Ram Vs. Devinder Singh
Jhudan & Another1, where the Apex Court has observed thus:
1 (2019) 10 SCC 287
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"28. The accused has failed to lead any evidence to
rebut the statutory presumption, a finding returned by
both the Trial Court and the High Court. Both Courts
not only erred in law but also committed perversity
when the due amount is said to be disputed only on
account of discrepancy in the cartons, packing
material or the rate to determine the total liability as if
the appellant was proving his debt before the Civil
Court. Therefore, it is presumed that the cheques in
question were drawn for consideration and the holder
of the cheques i.e., the appellant received the same in
discharge of an existing debt. The onus, thereafter,
shifts on the accused- appellant to establish a probable
defence so as to rebut such a presumption, which onus
has not been discharged by the respondent."
14. On the second aspect of service of notice and its receipt by
the Accused, he would place reliance upon the decision of the Apex
Court in case of C.C. Alavi Haji Vs. Palapetty Muhammed &
Another2, where the Three-Judges Bench, answered a reference
made by a Two-Judge Bench, pertaining to the question of service
of notice in terms of clause (b) of proviso to Section 138 of the
Negotiable Instrument Act 1881 and the question being
formulated as below:-
"Whether in absence of any averments in the
complaint to the effect that the accused had a role to
play in the matter on non-receipt of legal notice; or
2 (2007) 6 SCC 555
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that the accused deliberately avoided service of notice,
the same could have been entertained keeping in view
the decisions of this Court in D.Vinod Shivappa Vs.
Nanda3.
He would rely upon the following observations in the said
decision:-
"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 Evidence Act refers to a general
3 (2006) 6 SCC 456
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presumption, Section 27 refers to a specific
presumption.
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
inspite 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 Vs. Natthu Singh4;
State of M.P. Vs. Hiralal5 and V.Raja Kumari Vs.
P.Subbarama Naidu6]. 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.
4 (1992) 1 SCC 647
5 (1996) 7 SCC 523
6 (2004) 8 SCC 774
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17. It is also to be borne in mind that the
requirement of giving of notice is a clear departure
from the rule of Criminal Law, where there is no
stipulation of giving of a notice before filing a
complaint. Any drawer who claims that he did not
receive the notice sent by post, can, within 15 days of
receipt of summons from the court in respect of the
complaint under Section 138 of the Act, make payment
of the cheque amount and submit to the Court that he
had made payment within 15 days of receipt of
summons (by receiving a copy of complaint with the
summons) and, therefore, the complaint is liable to be
rejected. A person who does not pay within 15 days of
receipt of the summons from the Court along with the
copy of the complaint under Section 138 of the Act,
cannot obviously contend that there was no proper
service of notice as required under Section 138, by
ignoring statutory presumption to the contrary under
Section 27 of the GC Act and Section 114 of the
Evidence Act. In our view, any other interpretation of
the proviso would defeat the very object of the
legislation. As observed in K. Bhaskaran Vs. Sankaran
Vaidhyan Balan7, if the 'giving of notice' in the context
of Clause (b) of the proviso was the same as the
'receipt of notice' a trickster cheque drawer would get
the premium to avoid receiving the notice by adopting
different strategies and escape from legal
consequences of Section 138 of the Act."
7 (1999) 7 SCC 510
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15. At the outset, it is necessary to reproduce Section 138 of the
Negotiable Instruments Act, which also provide for the conditions
pertaining to the notice to be given to the Drawer in the form of
clause (b) and (c) of the proviso. The Section reads thus:-
"138. Dishonour of cheque for insufficiency, etc., of
funds in the account.-- Where any cheque drawn by a
person on an account maintained by him with a
banker for payment of any amount of money to
another person from out of that account for the
discharge, in whole or in part, of any debt or other
liability, is returned by the bank unpaid, either
because of the amount of money standing to the credit
of that account is insufficient to honour the cheque or
that it exceeds the amount arranged to be paid from
that account by an agreement made with that bank,
such person shall be deemed to have committed an
offence and shall, without prejudice to any other
provisions of this Act, be punished with imprisonment
for a term which may be extended to two years, or
with fine which may extend to twice the amount of the
cheque, or with both:
Provided that nothing contained in this section shall
apply unless--
(a) the cheque has been presented to the bank
within a period of six months from the date on which it
is drawn or within the period of its validity, whichever
is earlier;
(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
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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;
and
(c) the drawer of such cheque fails to make the
payment of the said amount of money to the payee or,
as the case may be, to the holder in due course of the
cheque, within fifteen days of the receipt of the said
notice."
16. In order to attract Section 138, which constitutes an offence,
upon dishonour of certain cheque for insufficiency of funds in the
Account, the Section itself contemplate that when any cheque is
drawn by a person on an Account maintained by him for payment
of any money due to another person on account of discharge of
some liability, is returned by the Bank, unpaid, either because the
money standing to the credit of the Account is insufficient or it
exceeds the amount arranged to be paid, such person is deemed to
have committed an offence, if the cheque has been presented to
the Bank within a period of six months from the date on which it is
drawn or within the period of its validity. In addition, it is also
necessary that the Payee or Holder, in due course, as the case may
be, makes a demand for payment of the amount of money by
giving notice in writing to the Drawer of the cheque, within 30
days of receipt of information that the Bank has returned the
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cheque unpaid, and the Drawer of such cheque on receipt of such
notice fails to make the payment within a period of 15 days.
In order to attract an offence under Section 138, it is
necessary, that when the cheque is dishonored, a notice is
addressed by the Complainant to the Accused asking him to make
the payment under the cheque, and if the Drawer of the cheque
fails to make the payment of the money within a period of 15 days
from "receipt of the notice", an offence under Section 138 is
attracted.
It therefore becomes essential to determine whether the
Drawer has failed to make the payment pursuant to the notice
being received by him, as the complaint can be filed under Section
138, only upon such a contingency.
17. At this juncture, it is necessary for me to make a reference to
Section 27 of the General Clauses Act, 1897 which is the provision
covering the service by post, and the said provision reads thus:-
"27. Meaning of service by post. - Where any [Central
Act] or Regulation made after the commencement of
this Act authorizes or requires any document to be
served by post, whether the expression 'serve' or either
of the expressions '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
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registered post, a letter containing the document, and,
unless the contrary is proved, to have been effected at
the time at which the letter would be delivered in the
ordinary course of post."
The service by post within the meaning of Section 27 shall
be deemed to be effective by properly addressing, pre-paying and
posting by Registered post, a letter containing the document, and
such a letter shall be presumed to be duly delivered in the ordinary
course of post.
What is most important, is the letter being properly
addressed to the Noticee.
18. In the first Appeal i.e. Criminal Appeal No. 56 of 2014, the
notice has been sent to the Accused by post under a certificate of
post and the acknowledgment i.e. Exhibit-E, reveals the full
address of the Accused as Jose Remedios A.A. Rodrigues, B4,
Riviera Residency, PDA Plots, Alto Porvorim, Bardez, Goa. The
date and stamp of office delivery (acknowledgement) is scribed as
06.08.2010, whereas under the caption signature and name, there
appears to be a signature of "Trella" with an endorsement of
05.08.2010.
PW-4, the Postman, responsible for the delivery of post mail
in PDA colony, Alto Porvorim, deposed that he delivered the
Registered A.D. letter at the address mentioned in the envelope
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and obtained the signature of the party who had received the
envelope.
On being confronted with the A.D. card under Exhibit-E, he
identified the signature and name of the person who received the
envelope. In cross-examination, he admitted that the registered
envelope was handed over by him to a girl named Trella, aged 15
years.
Admittedly, it was not established by the Complainant that
Trella was a member of the family of the Accused, as no evidence
to that effect is lead. Since it is not established that the A.D. was
signed by the Accused or any Member belonging to his family, it
cannot be concluded that the notice was duly received by him.
A perusal of Order V, Rule 15 of CPC make it clear that if the
summons are served on any adult member of the family, whether
male or female, residing with the Noticee, when he is absent from
his residence, that would be considered to be a service upon the
Defendant. The explanation appended to the said Rule state that a
servant is not a member of the family within the meaning of the
Rule. The relevant provision read thus:-
"15. Where service may be on an adult member of
defendant's family. - Where in a suit the defendant is
absent from his residence at the time when the service
of summons is sought to be effected on him at his
residence and there is no likelihood of his being found
at the residence within a reasonable time and he has no
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agent empowered to accept service of the summons on
his behalf, service may be made on any adult member
of the family, whether male or female, who is residing
with him.
Explanation-A servant is not a member of the family
within the meaning of this rule."
In absence of any evidence being brought on record that the
girl was a member of the family of the Accused and in any case,
since PW-4 has deposed that she was aged 15 years, the
acknowledgment signed by her, is not a proof of the service being
effected upon the Accused.
19. In the other Appeal i.e. Criminal Appeal No. 55 of 2014, the
A.D. receipt has given the address as "Jose Remedios A.A.
Rodrigues, Alto Porvorim Bardez, Goa" and there is a signature
scribed on the A.D., which is not proved to be of the Accused.
20. Dealing with the argument of the learned Counsel for the
Appellant, that the notices have been duly received by the
Accused, on perusal of the factual aspects in both the Appeals, it is
evident that in the first case, the receipt acknowledgment is signed
by some girl, unconnected to the Accused, and in second case, the
acknowledgment is signed on an A.D. receipt, which do not
contain the full address, and therefore, the presumption under
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Section 27 of the General Clauses Act, 1897 shall not come into
force, as the Appellate Court had rightly observed that Porvorim is
a big area and no letter can be served on such scanty address, and
the presumption shall operate when a letter is addressed to the
Noticee on a proper address by pre-paying and posting by
Registered post. The full address on the envelope may be proof of
sending of the notice, but it is not a proof of receipt of the notice.
The presumption under Section 114 of the Indian Evidence
Act, 1872 that under the common course of business, and
particularly, as to illustration (f) i.e. whether a letter was received,
it is shown to have been posted, but the usual course of the post
was interrupted by disturbance, which enables the Court to
presume the existence of any fact, which it thinks likely to have
happened in the course of natural events, human conduct and
public and private business, in their relation to the facts of a
particular case.
However, when it is not proved by the Complainant that the
girl who accepted the notice is a member of the family of the
Accused, in the normal course of business, the notice could have
been received by any girl in the locality, playing or wandering
around at the time when the Postman reached the spot. Unless
and until it is proved that she belongs to the family and notice is
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accepted by her, in the normal course of business, it cannot be said
that the service is complete.
In other case an address as scanty as found on the
acknowledgment, is not sufficient for delivery as Porvorim is a big
area and tracing a person merely on his name is an impossibility
and therefore, the presumption under Section 114 is not available.
21. In the wake of the aforesaid discussion, since in both the
cases, I find that the Accused is not served with the notice issued
by the Complainant and the reliance placed on Section 27 of the
General Clauses Act by the Trial Judge, cannot be justified, I am of
the view that in absence of notice being received, the contingencies
stipulated under Section 138(c) of the Drawer having failed to
make the payment within 15 days from the date of notice, has not
arisen.
The Appellate Court has therefore, rightly appreciated the
evidence rendered and being satisfied that the offence under
Section 138 of the N.I. Act is not made out, has rightly acquitted
the Accused Mr. Jose Remedios in both the cases.
In view of the above, both the Criminal Appeals stand
dismissed.
BHARATI DANGRE, J.
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