Shabana Akhlakh Udhardar ... vs State Of Gujarat
2023 Latest Caselaw 4078 Guj

    R/CR.MA/144/2023                                ORDER DATED: 06/06/2023




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/CRIMINAL MISC.APPLICATION NO. 144 of 2023
               In R/CRIMINAL APPEAL NO. 23 of 2023
                              With
                R/CRIMINAL APPEAL NO. 23 of 2023
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 SHABANA AKHLAKH UDHARDAR (SHABANA AKHLAK UGHRADAR)
                       Versus
                  STATE OF GUJARAT
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Appearance:
MR MM SAIYED(1806) for the Applicant(s) No. 1
MR RAMNANDAN SINGH(1126) for the Respondent(s) No. 2
Mr. Bhargav Pandya, Addl. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
                  Date : 06/06/2023

                           ORAL ORDER

1.0. The present application is filed by the applicant -original complainant seeking leave to appeal under Section 378(4) of the Code of Criminal Procedure challenging the impugned judgment and order of acquittal dated 01.09.2022 passed by the learned 4th Additional Judicial Magistrate, First Class, Bharuch in Criminal Case No.3344 of 2020. By the said judgment and order, the learned Magistrate has proceeded to record the order of acquittal of present respondent no.2- original accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the "NI Act").

2.0. When the matter was taken up for admission hearing, the Court having noticed the nature of dispute wherein it had transpired that the son of original accused is married with the

R/CR.MA/144/2023 ORDER DATED: 06/06/2023

daughter of the complainant and parties are facing various litigation, the Court had referred the matter to the Mediation Center to explore the possibility of settlement. Learned advocate Mr. MM Saiyed had appeared for the applicant and learned advocate Mr. Ramnadan Singh had appeared for the respondent no.2- original accused. Learned advocates for the respective parties have made efforts to settle the dispute. However, the mediation was reported to be unsuccessful. In such circumstances, the matter was taken up for admission hearing.

3.0. The learned advocates for the respective parties were extensively heard and were permitted to place on record the written submission along with authorities relied upon. Such written submission with authorities have been placed on record by both the sides. Having heard the learned advocates for the respective parties and having perused the impugned judgment and order and also written submission which has subsequently come on record, the Court at the stage of grant of leave to appeal has examined to the extent as to whether an arguable case is made out to grant leave and admit the appeal.

4.0. Considering the arguments made by the learned advocates for the respective parties, essentially in my opinion, following questions fall for consideration of this Court: I. Whether the notice issued upon accused under Section 138(b) of the NI Act has been complied with ?

II. Whether there was any legal debt outstanding in favour of the complainant in order to attract the offence under Section 138 of the NI Act against the accused ?

R/CR.MA/144/2023 ORDER DATED: 06/06/2023

5.0. So far as first issue is concerned, indisputably the notice under Section 138 of the NI Act was addressed at the shop of respondent no.2- original accused. The defence is raised by the accused that the complainant has sent such notice when she was not in the country and in fact no actual service of notice has been effected upon the accused. The learned Magistrate upon appreciation of the evidence of the complainant has noticed that she has admitted that while the notice was sent to the accused she was not in India and hence notice was addressed at the shop i.e. "Sheetal Sweets" and not at the residential address which the complainant was aware. The learned Magistrate has taken into consideration the aforesaid fact and draw inference against the complainant and arrived at a conclusion that mandatory provisions of the Act has not been fulfilled by the complainant. Mr. Saiyed, learned advocate for the applicant has placed on record the relevant documents including legal notice at Exh.13, registered post AD slip at Exh.14 and track report of the postal department confirming the service of notice upon the accused at Exh.15. Mr. Saiyed has relied upon the decision of the Hon'ble Supreme Court in the case of CC Alavi Haji vs. Palapetty Muhammed & Anr reported in 2007(2) GLH 512 and has submitted that 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. He, therefore, urge this Court that the learned Magistrate has committed error by not extending the presumption available under Section 27 of the General Clauses Act.

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6.0. Mr.Ramnandan Singh, learned advocate for the respondent

-original accused has submitted that service of notice to the accused is mandated under Section 138 (b) of the NI Act. The respondent accused had left India in the month of February 2020 and she came back to India on 14.10.2020. Thus, on the date when the legal notice was sent by RPAD i.e. on 14.08.2020 the respondent no.2 was not available. In such circumstances, there was no service of notice upon the respondent no.2. He has further emphasis the very fact that the notice was sent at the address of the Sheetal Sweets and not on the residential address goes to indicate that the complainant was aware about non availability of the respondent no.2 on the date of issuance of notice. He further submitted that son of the original complainant was working as Manager at Sheetal Sweets. No attempt was made by the complainant to send the notice on what's up or through Email, which goes to suggest the mala fide intention on behalf of the complainant. He, therefore, urge this Court that the findings arrived at by the learned Magistrate requires no interference. In support of his submission, he relied upon the decision of Kerala High Court in the case of M. Usman vs. M P Muhammed Ali rendered in Criminal Revision Petition No.4010 of 2007 dated 19.1.2017. By relying upon the aforesaid decision, he contended that the presumption under Section 138(b), General Clauses Act can only be drawn if the notice is sent to the correct address of the drawer of the cheque by registered post. In the said case, the notice was sent to the residential address of the accused where the complainant was fully aware that the accused was working outside the India and would not be available at the residential address. In such circumstances,

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the presumption of service under Section 27 of the General Clauses Act was refused by the Court. He also relied upon the decision of the Kerala High Court in the case of P C George vs. M G Jose and Another reported in 2006(3) KLT 863 wherein the Court after verifying the record had held the complaint not maintainable noticing the fact that the demand notice had remained unserved as the accused had left for abroad. The Court had observed that the complainant ought to have sent the statutory notice to the accused on his correct address in order to attract the offence under Section 138 of the NI Act. Reliance was also placed on the order passed by the Hon'ble Supreme Court considering the pandemic situation of Covid - 19 wherein the period of limitation for instituting proceeding under the NI Act have been extended.

7.0. Insofar as the second issue of existence of legally enforceable debt is concerned, Mr. Ramnandan Singh, learned advocate has submitted that upon evaluation of the cross examination of the complainant, the learned Magistrate has noticed that the complainant had made claim for an amount of Rs.25 lakhs and it is contended in the complaint that she has managed this money by any means and after that it was handed over to the accused. With such averment being made in the complaint, the learned Magistrate has doubted her financial capacity to manage such huge amount of Rs.25 lakhs. The Court has further noticed that the complainant has given Rs.25 lakhs to the accused in the month of February 2020 whereas the disputed cheques are dated 11.5.2020 and 14.5.2020 respectively. The Court has further noticed that the criminal

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complaint came to be registered by the daughter of the complainant against the son of the accused under Section 498 A of the IPC on 13.5.2020 whereas the cheques came to be deposited on 5.8.2020. Thus, the aforesaid fact has created doubt in the version of the complainant. Noticing the aforesaid fact, the Court has dismissed the complaint under Section 138 of the NI Act. Responding to the second issue, he has relied upon the decisions of the Hon'ble Supreme Court in the case of K. Subramani vs. K.Damodara Naidu reported in (2015) 1 SCC 99, in the case of Basalingappa vs. Mudibasappa reported in (2019) 5 SCC 419 and in the case of Krishan Janardhan Bhat vs. Dattatraya G Hegde reported in (2008) 4 SCC 54. He, therefore, urge this Court not to grant leave to appeal.

8.0. Mr. Saiyed, learned advocate while responding to the aforesaid argument of Mr.Ramnandan Singh learned advocate for the accused, has submitted that the learned Magistrate has failed to draw initial presumption available under the statute having recorded the fact that accused had not disputed her signature on the cheques. He submitted that unless the contrary is proved the complainant being the holder of such cheque which was received against the discharge of liability. In absence of any cogent evidence being brought on record the learned Magistrate ought to have been drawn presumption available under the law in favour of the complainant. He further submitted that the burden on the accused to rebut such presumption. In support of his submission, he has relied upon the decision of the Hon'ble Supreme Court in the case of Krishan Janardhan Bhat vs. Dattatraya G Hegde reported in (2008) 4 SCC 54..

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9.0. Having heard the learned advocates for the respective parties, prima facie, the Court finds that if one look at the provisions of Section 138(b) of the NI Act what is essential is to "send" the notice at the known address of the accused. Indisputably, "giving" of notice by the complainant has come on record in the form of documents including legal notice at Exh.13, registered post AD slip at Exh.14 and track report of the postal department confirming the service of notice upon the accused at Exh.15. Thus, this Court in the present appeal would be required to examine the issue that when a notice is sent by registered post AD at the known address of the accused amounts to due service of notice as per presumption available under Section 27 of the General Clauses Act.

10. So far as second issue is concerned, prima facie, the Court finds that the initial presumption available under the statute was required to be drawn in favour of the complainant. It is a settled legal position of law that presumption cannot be rebutted unless the contrary is proved by the accused. There cannot be a dispute to the legal position that such rebuttal of presumption can be drawn from the evidence available on record for which, the accused may not enter into the witness box or lead any evidence. However, considering the disputed facts involved , the Court would like to examine as to whether the presumption stood rebutted considering the evidence which has come on record. Prima facie the Court finds that the learned Magistrate has ignored the bank statement of the complainant which goes to indicate an amount of Rs.10 lakhs was there in the bank

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account of the applicant. It appears that the learned Magistrate in absence of any rebuttal of presumption has proceeded to shift the burden on the complainant to prove his financial capacity. Hence, present leave to appeal requires consideration. Present application seeking leave to appeal is allowed and Leave to Appeal, as prayed for, is hereby granted.

Order in Criminal Appeal:

Admit. Mr. Ramnandan Singh, learned advocate waives service of admission on behalf of respondent no.2- original accused and Mr. Bhargav Pandya, learned Additional Public Prosecutor waives service of admission on behalf of the State. Let, expedite the hearing of the appeal.

(NISHA M. THAKORE,J) KAUSHIK J. RATHOD