Manjulaben H. Pandya vs Gurumukhdas Bhagwandas Vaswani
2022 Latest Caselaw 10203 Guj

     R/CR.A/2432/2008                                JUDGMENT DATED: 16/12/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CRIMINAL APPEAL NO. 2432 of 2008


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE GITA GOPI

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1     Whether Reporters of Local Papers may be allowed                     No
      to see the judgment ?

2     To be referred to the Reporter or not ?                             Yes

3     Whether their Lordships wish to see the fair copy                    No
      of the judgment ?

4     Whether this case involves a substantial question                    No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                     MANJULABEN H. PANDYA
                            Versus
            GURUMUKHDAS BHAGWANDAS VASWANI & 1 other(s)
==========================================================
Appearance:
MR RA MISHRA(481) for the Appellant(s) No. 1
MR PRANAV TRIVEDI APP for the Opponent(s)/Respondent(s) No. 2
RULE SERVED for the Opponent(s)/Respondent(s) No. 1
==========================================================

    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                 Date : 16/12/2022

                                 ORAL JUDGMENT

1. The present appeal has been preferred under

section 378(4) of the Code of Criminal Procedure, 1973

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(for short 'Cr.PC') by the appellant challenging the

judgment and order passed by the learned 3 rd Judicial

Magistrate, Junagadh in Criminal Case No.1948 of 1999

passed on 13.10.2003 acquitting the accused for the

offence under section 138 of the Negotiable Instruments

Act (for short 'N.I. Act).

2. The complainant's case before the learned trial

Court Judge was that the present private respondent had

issued two cheques of Rs.50,000/- dated 03.04.1999 and

05.04.1999 bearing no.43340 and 45798 drawn on the

account maintained by the private respondent in Veraval

Mercantile Cooperative Bank Ltd., Junagadh Branch. The

complainant deposited the cheque in her account

maintained with the Junagadh District Cooperative Bank,

and it is stated that on being sent for realization, the

same were dishonoured because of insufficient fund. The

complainant, therefore, issued a statutory notice, but it is

stated that on receipt of the notice, the accused failed to

pay, and neglected, to give any reply and therefore

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Criminal Case No.1948 of 1999 was filed.

3. Mr. R.A. Mishra learned advocate for the

appellant submitted that being aggrieved by the

judgment and order in Criminal Case No.1948 acquitting

the accused by giving benefit of doubt, the appellant

preferred Criminal Revision Application No.628 of 2003,

which came to be dismissed vide order dated 08.07.2005

on the ground of availing remedy under Cr.PC of filing of

appeal and thus, leave to appeal was filed which came to

be granted and therefore, the present appeal.

4. Mr. Mishra submitted that the order of the trial

Court Judge acquitting the accused is illegal, erroneous

and against the object of the N.I. Act. He submitted that

the learned trial Court Judge has rejected the complaint

only observing that the statutory notice under section 138

of N.I. Act was not served on the accused. By referring to

the observations of the learned trial Court Judge, Mr.

Mishra submitted that, the legal notice was served

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through R.P.A.D. and even by U.P.C. and the postal

window slip was also produced to substantiate the fact

that legal notice was issued to the accused through post.

4.1 Mr. Mishra submitted that the learned trial

Court Judge failed to appreciate that the summons of the

complaint in compliance of the order of the Court was

served on the very same address, where the legal notice

was issued, and further as the accused failed to remain

present during the trial, a warrant was issued and the

statement of the wife at the same address of the accused

was recorded by the police. He submitted that a false

evidence has been created through the brother of the

accused to bring on record that, at the relevant time,

when the notice was served, he was staying at their

another house at 'Sangadiya Bazar', and, while when the

legal notice was issued, he was not staying at 'Sindhi

Society', Gandhigram.

4.2 Mr. Mishra further submitted that, the learned

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trial Court Judge should have disbelieved the witness of

the accused, where there was nothing on record that the

accused had urged before the Court after service of

summons to pay the money within 15 days of receipt of

summons of the Court. Mr. Mishra submitted that the

complainant had urged in the complaint that the notice

was sent through Registered Post A.D. and the accused

had not accepted the same. While the notice sent under

U.P.C. was received by the accused.

4.3 Mr. Mishra submitted that the verification on

the complaint was taken on 04.05.1999 by the learned

Chief Judicial Magistrate, Junagadh and the process of

summons was issued making it returnable on 04.06.1999

and vide exhibit-11, on 03.02.2000, the accused had

prayed for time, which came to be granted; and further

exemption application was granted on 01.03.2000, but

the learned Judge rejected the application and issued

arrest warrant against the accused, which had been

issued on the very same address, as noted in the

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complaint. Mr. Mishra submitted that the application,

Exhibit-12, was moved for cancellation of the warrant,

and, vide Exhibit-16, on 25.04.2000, the plea was

recorded.

4.4 Mr. Mishra relied on the judgment of Division

Bench of this Court passed in (i) Akhtar hussainali

Hasankhan Proprietor of FM/Sakhtar Vs. Surat

Municipal Coroporation And Another, rendered in

Special Civil Application No.9191 of 2011 with Special

Civil Application No.9195 of 2011, dated 25.07.2011, (ii)

Dineshbhai Manilal Raval Vs. Manshukhbhai

Maganbhai Patel & Ors., reported in 2012 Law Suit

(Guj) 1443 and (iii) C.C. Alavi Haji Vs. Palapetty

Muhammed, reported in (2007) 6 SCC 555, to submit

that the post office is a branch of public service providing

postal services subject to the provisions of Indian Post

Office Act and Rules made thereunder and when the

registered article or registered letter was handed over, it

is official duty of the postal authority to make delivery,

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which is officially a normal function of the post office.

Even if, in a case notice has returned unserved with

endorsement that accused "left house", such a contention

of the private respondent in a complaint under section

138 of the N.I. Act is not maintainable. Even if, in a case

he has not received a notice by post, it is open for the

accused to make payment of cheque amount within a

period of 15 days of summons of the Court in respect of

complaint under section 138 of the N.I. Act, and

thereafter it would have been open for the accused to

submit that the complaint is liable to be rejected; and

thus, Mr. Mishra submitted that when no efforts have

been made by the accused to show his willingness to pay

the amount, no consideration can be given to any of the

defence to contend against the service of statutory notice.

4.5 Mr. Mishra further submits that service by

registered post is a deemed service, and presumption is

always drawn, and when the notice has been served to

the correct address, the principle of deem service

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enshrined in section 27 of the General Clauses Act, would

be attracted.

5. In the background of the above facts and the

argument advanced, it requires mention that the notice of

the appeal was served to respondent no.1 on the very

same address, as was stated in the cause title of the

complaint being Criminal Case No.1948 of 1999, but has

preferred not to appear in the matter. The learned trial

Court appears to have given much importance to the

factum that the notice declined by the accused with the

original cover was required to be produced, since that

being an important and large evidence. While it is

required to be taken note of the fact that the complainant

had contended in the complaint that the notice dated

13.04.1999 by R.P.A.D. has not been accepted by the

accused and while the notice sent by U.P.C., was received

by the accused.

6. Here, in this case, the accused had through the

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evidence of his brother stated that he was, at the relevant

time when the legal notice under Section 138 was served,

not residing at the address, where it was delivered. The

address, where the notice was served, was a residential

house of the accused. The process of warrant was also

served at the same address, where the statement of wife

of the accused was recorded. The accused had urged the

temporary non-stay in his own residential house. It is

quite obvious that the accused was playing tricks and he

was deliberately evading the notice while the fact

remains that the Postal Window Slip was produced on

record to show that the legal notice sent through post by

R.P.A.D. The notice was also served by U.P.C.

6.1 In the present case, the learned trial Court

Judge has placed burden on the complainant to prove that

the R.P.A.D., which was processed was refused by the

accused to be accepted. The R.P.A.D. has not been

received back as "unclaimed" or "refused". The

complainant could not produce on record the original

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R.P.A.D. cover along with the acknowledgment slip to

show any endorsement by the postal authority. The

question, therefore, would arise, whether there would be

any significant difference in a case where the notice has

not been received back as returned "unclaimed" or as

"refused", so far as presumption of service is to be

considered.

7. Section 138 of the N.I. Act does not require

that notice should be given only by post. Yet in a case

when the sender has dispatched a notice by post with

correct address written on it, the principle incorporated

in section 27 of the General Clauses Act, 1897, would be

imported in such a case, and in that situation service of

notice is deemed to have been effected on the sendee,

unless he proves that it is not really served and that he

was not responsible for such non-service.

7.1 Here, in the instant case, as per the evidence

on record of the brother of the accused, as observed by

the trial Court Judge, it has been a clear contention of the

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accused that at the time of the service of notice, he was

not residing at the given address and, therefore, the

learned trial Court Judge had not placed reliance on the

notice being served through Certificate of Posting, which

had been certified by Exhibit-89. The learned trial Court

Judge refused to believe the service of notice by U.P.C. to

the accused merely on his contention that he was not

residing at the address at that relevant time. While it is

required to be noted that the summons and warrant of

the trial Court was served upon the accused on that very

address. Although presumption under section 27 of the

General Clauses Act, 1897 does not apply to a case of a

letter sent under certificate of posting, the presumption

under section 114 of the Evidence Act, 1872 would apply

in such a case. The Court will be at a liberty to see if such

presumption has been rebutted in view of the evidence on

record and the facts and circumstances of the case.

7.2 The learned trial Court Judge ought to have

appreciated the fact that the evidence of the brother of

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the accused was a deliberate attempt on the side of the

accused to support his defence, that at the time of the

service of notice, he was not staying in his residential

house at 'Sindhi Society', Gandhigram, while he was

residing at 'Sangadiya Bazar'.

8. In the case of C.C. Alavi Haji Vs. Palapetty

Muhammed, (2007) 6 SCC 555, the Apex Court has dealt

with issuance of notice and a trickster cheque drawer for

the court dealing with it, by way of purposive

construction, the Hon'ble Apex Court in paragraph nos. 7

and 9, held as under:

"7. The issue with regard to interpretation of the expression giving of notice used in Clause (b) of the proviso is no more res integra. In K. Bhaskaran Vs. Sankaran Vaidhyan Balan & Anr. , the said expression came up for interpretation. Considering the question with particular reference to scheme of Section 138 of the Act, it was held that failure on the part of the drawer to pay the amount should be within fifteen days of the receipt of the

R/CR.A/2432/2008 JUDGMENT DATED: 16/12/2022

said notice. Giving notice in the context is not the same as receipt of notice. Giving is a process of which receipt is the accomplishment. It is for the payee to perform the former process by sending the notice to the drawer at the correct address and for the drawer to comply with Clause

(c) of the proviso. Emphasizing that the provisions contained in Section 138 of the Act required to be construed liberally, it was observed thus: If a strict interpretation is given that the drawer should have actually received the notice for the period of 15 days to start running no matter that the payee sent the notice on the correct address, a trickster cheque drawer would get the premium to avoid receiving the notice by different strategies and he could escape from the legal consequences of Section 138 of the Act. It must be borne in mind that Court should not adopt an interpretation which helps a dishonest evader and clips an honest payee as that would defeat the very legislative measure. In Maxwell's Interpretation of Statues the learned author has emphasized that "provisions relating to giving of notice often receive liberal interpretation," (vide page 99 of the 12th Edn.) The context envisaged in Section 138 of the Act invites

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a liberal interpretation for the person who has the statutory obligation to give notice because he is presumed to be the loser in the transaction and it is for his interest the very provision is made by the legislature. The words in Clause (b) of the proviso to Section 138 of the Act show that payee has the statutory obligation to make a demandµ by giving notice. The thrust in the clause is on the need to make a demandµ. It is only the mode for making such demand which the legislature has prescribed. A payee can send the notice for doing his part for giving the notice. Once it is dispatched his part is over and the next depends on what the sendee does.

9. All these aspects have been highlighted and reiterated by this Court recently in Vinod Shivappas case (supra). Elaborately dealing with the situation where the notice could not be served on the addressee for one or the other reason, such as his non availability at the time of delivery, or premises remaining locked on account of his having gone elsewhere etc; it was observed that if in each such case, the law is understood to mean that there has been no service of notice, it would completely defeat the very purpose of the

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Act. It would then be very easy for an unscrupulous and dishonest drawer of a cheque to make himself scarce for sometime after issuing the cheque so that the requisite statutory notice can never be served upon him and consequently he can never be prosecuted. It was further observed that once the payee of the cheque issues notice to the drawer of the cheque, the cause of action to file a complaint arises on the expiry of the period prescribed for payment by the drawer of the cheque. If he does not file a complaint within one month of the date on which the cause of action arises under Clause (c) of the proviso to Section 138 of the Act, his complaint gets barred by time. Thus, a person who can dodge the postman for about a month or two, or a person who can get a fake endorsement made regarding his non availability, can successfully avoid his prosecution because the payee is bound to issue notice to him within a period of 30 days from the date of receipt of information from the bank regarding the return of the cheque as unpaid. He is, therefore, bound to issue the notice, which may be returned with an endorsement that the addressee is not available on the given address."

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9. With reference to the letter that is to be served,

three possibilities can be envisaged; (i) the letter is not

tendered at all to the addressee or though tendered, is

not tendered in his original place of residence, or (ii) the

letter is tendered, but the addressee refuses to accept it;

or (iii) the letter is tendered to, and accepted by, the

addressee. The first case sometime raises problem, while

in the second case of refusal to accept the services raises

more numerous question. In D. Vinod Shivappa Vs.

Nanda Belliappa, reported in (2006) 6 SCC 456, it has

been observed that the receipt of notice has to be proved,

but if the notice is refused by the addressee, it may be

presumed to have been served. In a case where notice is

not claimed even though sent by registered post, with the

aid of section 27 of the General Clauses Act, the drawer

of the cheque may be called upon to rebut the

presumption, which arises in favour of service of notice. It

was further observed that, no rule of universal application

can be laid down in all places where notice is not served

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on account of non-availability of the addressee, the Court

must presume service of notice. To recapitulate,

paragraph no.14 is reproduced hereinbelow:

"14. If a notice is issued and served upon the drawer of the cheque, no controversy arises. Similarly if the notice is refused by the addressee, it may be presumed to have been served. This is also not disputed. This leaves us with the third situation where the notice could not be served on the addressee for one or the other reason, such as his non availability at the time of delivery, or premises remaining locked on account of his having gone elsewhere etc. etc. If in each such case the law is understood to mean that there has been no service of notice, it would completely defeat the very purpose of the Act. It would then be very easy for an unscrupulous and dishonest drawer of a cheque to make himself scarce for sometime after issuing the cheque so that the requisite statutory notice can never be served upon him and consequently he can never be prosecuted.

There is good authority to support the proposition that once the complainant, the

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payee of the cheque, issues notice to the drawer of the cheque, the cause of action to file a complaint arises on the expiry of the period prescribed for payment by the drawer of the cheque. If he does not file a complaint within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138 of the Act, his complaint gets barred by time. Thus, a person who can dodge the postman for about a month or two, or a person who can get a fake endorsement made regarding his non availability can successfully avoid his prosecution because the payee is bound to issue notice to him within a period of 30 days from the date of receipt of information from the bank regarding the return of the cheque as unpaid. He is, therefore, bound to issue the legal notice which may be returned with an endorsement that the addressee is not available on the given address."

9.1 Thus, as per the observation in D. Vinod

Shivappa Vs. Nanda Belliappa (supra), whether the

service of notice has been fraudulently refused by

unscrupulous means and in that circumstance was

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deemed service of notice, has to be considered in light of

evidence on record. Paragraph 11 to 13 of the judgment

of D. Vinod Shivappa shall read as under:

"11. The question is whether in a case of this nature, where the postal endorsement shows that the notice could not be served on account of the non availability of the addressee, a cause of action may still arise for prosecution of the drawer of the cheque on the basis of deemed service of notice under clause (c) of proviso to Section 138 of the Act. In our view this question has to be answered by reference to the facts of each case and no rule of universal application can be laid down that in all cases where notice is not served on account of non-availability of the addressee, the court must presume service of notice.

12. It is well settled that in interpreting a statute the court must adopt that construction which suppresses the mischief and advances the remedy. This is a rule laid down in Heydon's case 1 (1984) 76 ER 637 also known as the rule of

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purposive construction or mischief rule.

13. Section 138 of the Act was enacted to punish those unscrupulous persons who purported to discharge their liability by issuing cheques without really intending to do so, which was demonstrated by the fact that there was no sufficient balance in the account to discharge the liability. Apart from civil liability, a criminal liability was imposed on such unscrupulous drawers of cheques. The prosecution, however, was made subject to certain conditions. With a view to avoid unnecessary prosecution of an honest drawer of a cheque, or to give an opportunity to the drawer to make amends, the proviso to Section 138 provides that after dishonour of the cheque, the payee or the holder of the cheque in due course must give a written notice to the drawer to make good the payment. The drawer is given 15 days time from date of receipt of notice to make the payment, and only if he fails to make the payment he may be prosecuted. The object which the proviso seeks to achieve is quite obvious. It may be that on account of mistake of the bank, a cheque may be returned despite the fact that there is sufficient balance in the

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account from which the amount is to be paid. In such a case if the drawer of the cheque is prosecuted without notice, it would result in great in-justice and hardship to an honest drawer. One can also conceive of cases where a well intentioned drawer may have inadvertently missed to make necessary arrangements for reasons beyond his control, even though he genuinely intended to honour the cheque drawn by him. The law treats such lapses induced by inadvertence or negligence to be pardonable, provided the drawer after notice makes amends and pays the amount within the prescribed period. It is for this reason that clause (c) of proviso to Section 138 provides that the section shall not apply unless the drawer of the cheque fails to make the payment within 15 days of the receipt of the said notice. To repeat, the proviso is meant to protect honest drawers whose cheques may have been dishonoured for the fault of others, or who may have genuinely wanted to fulfil their promise but on account of inadvertence or negligence failed to make necessary arrangements for the payment of the cheque. The proviso is not meant to protect unscrupulous drawers who never

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intended to honour the cheques issued by them, it being a part of their modus operandi to cheat unsuspecting persons."

9.2 The case of D. Vinod Shivappa Vs. Nanda

Belliappa, was also taken into consideration for a

comparison between the provisions of section 27 of the

General Clauses Act and section 114 of the Evidence Act.

Para -15 of the case of the said judgment reads as under.

"15. We cannot also lose sight of the fact that the drawer may by dubious means manage to get an incorrect endorsement made on the envelope that the premises has been found locked or that the addressee was not available at the time when postman went for delivery of the letter. It may be that the address is correct and even the addressee is available but a wrong endorsement is manipulated by the addressee. In such a case, if the facts are proved, it may amount to refusal of the notice. If the complainant is able to prove that the drawer of the cheque knew about the notice and deliberately evaded service and got a false endorsement made only to

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defeat the process of law, the Court shall presume service of notice. This, however, is a matter of evidence and proof. Thus even in a case where the notice is returned with the endorsement that the premises has always been found locked or the addressee was not available at the time of postal delivery, it will be open to the complainant to prove at the trial by evidence that the endorsement is not correct and that the addressee, namely the drawer of the cheque, with knowledge of the notice had deliberately avoided to receive notice."

10. Here, in this case, the evidence shows that

notice was issued by registered post as well as by

Certificate of Posting at the correct address of drawer of

the cheque, where only temporary non-stay at his own

residential house was urged by examining the brother of

the accused. The notice under Post Certificate was

served. Section 114 of the Evidence Act, 1872 is applied

to communications sent under Certificate of Posting. It

enables the Court to presume that in common course of

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natural events, the communications should have been

delivered at the address of the addressee. But the

presumption that is raised under section 27 of the

General Clauses Act, 1897 is a far stronger presumption.

While section 114 of the Evidence Act refers to a general

presumption, section 27 of the General Clauses Act,

refers to a specific presumption; it gives rise to the

presumption that service of notice has been effected

when it is sent to a correct address by register post. In

that case, 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 contrary is proved by the addressee,

service of notice is deemed to have been effected at the

time, at which the letter has been delivered in the

ordinary course of business. The Hon'ble Supreme Court

has already held that a notice is sent by a registered post

and is return with the postal endorsement "refused" or

"not available in the house" or "house locked" or

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"addressee not in station", due service has to be

presumed.

10.1 In the present case, the registered post A.D.

cover had not come back to the complainant with any of

the endorsement. The evidence on record suggests that

the address of the drawer was correct, subsequent

summons of the Court was served on the very same

address. The evidence produced by the brother of non-

availability of the accused at the relevant time, in the very

residential house, could not be considered as non-service

of notice, since it was a dubious means adopted by the

accused. The complainant had sent the notice through

U.P.C. and the drawer of the cheque knew about the

notice and therefore adopted an unfair means to contain

non-service of notice, which would completely defeat the

very prupose of the Act. If such defences are to be

believed, then as observed in the case of C.C. Alavi Haji

Vs. Palapetty Muhammed (supra), it could then be very

easy for an unscrupulous and dishonest drawer of a

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cheque to make himself scarce for sometime after issuing

the cheque so that the requisite statutory notice can

never be served upon him and consequently he can never

be prosecuted. The course open to the accused - drawer

to show his bonafide, where he claims of not to have

received the notice sent by post, but received copy of the

complaint with summons to have made payment of the

cheque amount and on that basis could have submitted

the Court to reject the complaint. While in the present

case, the accused has failed to do so; thus the principle

incorporated in section 27 of the General Clauses Act

and even Section 114 of the Evidence Act would be

attracted. The requirement of clause (b) of the proviso to

section 138 stands complied with. Clause (c) of the

proviso to section 138, thus gives a cause of action to the

complainant, wherein the drawer of such cheque fails to

make the payment of the said amount of money to the

payee within fifteen days from the date of receipt of the

said notice. Payee can file a complaint under Section 138

of the N.I. Act; when the cheque has been dishonoured on

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the ground of insufficiency of the fund, for that, accused

shall be deemed to have committed an offence and shall

be punished 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.

11. In view of the above discussions and

observations, the appeal stands succeed and allowed. The

judgment and order dated 13.10.2003 passed by the

learned 3rd Judicial Magistrate, Junagadh in Criminal

Case No.1948 of 1999 is quashed and set aside. The

respondent - accused is held to be guilty for the offence

punishable under section 138 of the N.I. Act, and is

sentenced to undergo simple imprisonment for a period of

one year with fine, to be paid twice the amount of cheque

in question and in default thereof to further undergo two

months' simple imprisonment. The respondent is directed

to surrender to custody before the concerned authority

within a period of Four Weeks, failing which the Court

concerned shall take appropriate decision to secure the

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custody of the accused in accordance with law. The

amount of fine, thus deposited by the respondent shall be

given to the complainant. Record & Proceedings, if

received, be sent back to the concerned trial Court

forthwith.

(GITA GOPI,J) Pankaj