Yogendra Singh Jadon vs Brajendra Singh Jadon
2023 Latest Caselaw 16587 MP

                                                                        1
                                  IN THE HIGH COURT OF MADHYA PRADESH
                                              AT G WA L I O R
                                                                  BEFORE
                                   HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
                                                CRIMINAL APPEAL No. 1775 of 2023

                           BETWEEN:-
                           YOGENDRA SINGH JADON S/O SHRI MUKUT SINGH
                           JADON, AGED ABOUT 38 YEARS, OCCUPATION:
                           SCHOOL SANCHALAN GOVARDHAN COLONY, NEAR
                           HOUSE OF NEELU BHADORIA, GOLA KA MANDIR,
                           GWALIOR (MADHYA PRADESH)
                                                                                                  .....APPELLANT
                           (BY SHRI JITENDRA SINGH RATHORE - ADVOCATE)

                           AND
                           BRAJENDRA SINGH JADON S/O LATE SHRI FERAN
                           SINGH JADON VILLAGE DHAMKAN, TEHSIL JORA,
                           DISTRICT  MORENA   AT    PRESENT  KOTALA,
                           MUBARAKPUR, NEW DELHI (DELHI)
                                                                                                .....RESPONDENT

                           (NONE FOR THE RESPONDENT )
                           -------------------------------------------------------------------------------------------
                                          Reserved on            :       14.09.2023
                                          Pronounced on :                09.10.2023
                           -------------------------------------------------------------------------------------------
                                  This appeal having been heard and reserved for judgment, coming
                           on for pronouncement this day, Justice Sanjeev S Kalgaonkar
                           pronounced the following:

                                                                    ORDER

Heard on IA No.2321/2023, which is an application for leave to appeal under Section 378(4) of CrPC against the judgment of acquittal dated 12.12.2022 passed by Smt. Nidhi Saxena, Judicial Magistrate First Class, Gwalior in Criminal Case No.2639/2016 whereby respondent Bajendra Singh jadon was acquitted of the charge of offence punishable under

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Section 138 of Negotiable Instruments Act.

The appellant, in the application for leave to appeal submitted that respondent Brajendra Singh has taken a loan of Rs.4,70,000/- for his personal need from appellant-Yogendra Singh Jadon. To repay the loan, respondent had given a cheque dated 11.05.2012 in sum of Rs.4,70,000/- payable from her account in Punjab National Bank, Kotla Mubarakpur New Delhi. The cheque was presented for encashment on 17.05.2012, but it was dishonoured on the same day with the remark "insufficient funds'. Despite service of demand notice to respondent, he had not paid the amount of cheque, therefore, a complaint under Section 138 of NI Act was filed. Learned Judicial Magistrate, after trial, passed the impugned judgment on 12.12.2022 and acquitted respondent-Brijendra Singh Jadon.

Aggrieved by the impugned judgment, petitioner has filed application for grant of leave to appeal on following grounds:-

1. The memorandum of dishonour of cheque with bank slip (Exhibit P-

2) and (Exhibit P-3) clearly mention that the cheque was dishonour due to insufficient fund.

2. The petitioner has produced courier receipt (Exhibit P-7) and delivery report of demand notice on respondent (Exhibit P-8).

3. Learned trial Court committed grave error in acquitting the accused on the ground that demand notice was given beyond prescribed period of 30 days after dishonour of cheque.

4. Learned trial Court committed grave error in acquitting the accused on the ground that the complainant has failed to prove that cheque was given for discharge of legally recoverable debt.

On such ground it is requested that leave to appeal against the order of acquittal be granted to the petitioner.

Learned counsel for the appellant submits that after receipt of

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memorandum of dishonour of cheque on 17.05.2012, demand notice was sent to the accused by registered post on 25.05.2012 which was returned with endorsement that addressee do not reside at village -Dhamkan. Thereafter, another notice was issued to accused by registered post on 08.06.2012 which was returned with endorsement that address is not correct, addressee resides elsewhere. Thereafter, third notice was issued through courier - "Overnight Express" on 02.07.2012 which was delivered to the accused on 03.07.2012 vide delivery report (Exhibit P-8). Learned counsel contends that the complainant attempted twice to serve demand notice on the accused, when the notice was served on 03.07.2012, this complaint was filed on 23.07.2012. Hence, the complaint was filed within the limitation. Learned trial Court has committed error in rejecting the complaint on the ground of limitation under Section 138 (b) of the Negotiable Instruments Act.

It is further stated that learned Trial Court has failed to appreciate that onus of showing absence of legally recoverable debt or liability was on the respondent. The acquittal of respondent under Section 138 of NI Act is bad in law, therefore, leave to appeal may be granted to appellant against the impugned judgment of acquittal dated 12.12.2022.

Heard the appellant and perused the record.

From study of judgments of Supreme Court on the question of scope of powers of the Court in an appeal against acquittal in the cases of Chandrappa Vs State of Karnataka, (2007) 4 SCC 415, Murugesan v. State through Inspector of Police, AIR 2013 SUPREME COURT 274, Mookkiah v. State, Rep. by the Inspector of Police, Tamil Nadu, AIR 2013 SUPREME COURT 321, Habib v. State of Uttar Pradesh, AIR 2013 SUPREME COURT 1764, State of Madhya Pradesh v. Dal Singh, AIR 2013 SUPREME COURT 2059 and State of U. P. v. Gobardhan, AIR 2013 SUPREME COURT 3033, following broad principles may be culled out:-

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(1) The appellate Court has full power to review, re-appreciate and reconsider the evidence etc. (2) The code of Criminal Procedure 1973 puts no limitation, restriction or condition on the exercise of such power and an appellate Court on the evidence before it may reach its own conclusion both on the questions of fact or of law.

(3) The reversal of the acquittal can be made only if the conclusions recorded by the learned trial Court do not reflect a possible view. "Possible view" denotes a conclusion which can reasonably be arrived at regardless of the fact whether it is agreed upon or not by the higher Court.

(4) The court should interfere only where it finds an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view.

(5) In exceptional circumstances and for compelling reasons the appellate Court should not hesitate to reverse a judgment of acquittal passed by the lower Court, if the findings so recorded by lower Court are found to be perverse, i.e. if the conclusions arrived at by the Court are contrary to the evidence on record, or if the Courts entire approach with respect to dealing with the evidence is found to be patently illegal, leading to the miscarriage of justice, or if its judgment is unreasonable and is based on an erroneous understanding of the law and of the facts of the case.

(6) Subject to aforesaid, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. (7) The appellate Court must bear in mind that the presumption of innocence in favour of the accused has been bolstered by an acquittal by the lower Court.

The fact situation of the case in hand is examined in light of aforementioned principles.

Learned trial Court on consideration of evidence on record concluded that the accused has issued Cheque No.768667 for amount of Rs.4,70,000/- dated 11.05.2012 for repayment of legally enforceable liability. The cheque was dishonoured on 17.05.2012 for the reason of insufficient funds in the account of the accused. Complainant stated that he received the information with regard to dishonour of cheque on 17.05.2012.

Section 138-(b) of Negotiable Instruments Act provides as under:-

"(b) the payee or the holder in due course of the cheque, as the case

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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;" This complaint is filed on the basis of notice dated 02.07.2012 and delivery report dated 03.07.2012 (Exhibit P-8). Firstly, the notice dated 02.07.2012 was issued after 30 days of receipt of intimation with regard to dishonour of cheque. Secondly, no demand notice dated 02.07.2012 is available on the record. Further, no evidence is produced with regard to service of notice at address of Delhi to the accused. The delivery slip (Exhibit P-8) does not bear any seal or signature. There is no evidence that the accused was resident of "Kolta Mubarakpur, Delhi". The address "Kolta (sic- Kotla) Mubarakpur, Delhi" is huge area, therefore, no inference can be drawn that the notice was sent on correct and complete address. No witness is examined with regard to delivery of notice. In such a scenario, the presumption under Section 27 of the General Clauses Act cannot be raised regarding service of the notice by a private courier - "Overnight Express". Learned trial Court has committed no error in holding that since the notice dated 02.07.2012 was issued after prescribed period of 30 days as mandated by Section 138(b) of the Negotiable Instruments Act, therefore, the offence punishable under Section 138 of Negotiable Instruments Act is not made out.

In case of MSR Leathers v. S. Palaniappan, (2013) 1 SCC 177, it was held that-

12. The proviso to Section 138, however, is all important and stipulates three distinct conditions precedent, which must be satisfied before the dishonour of a cheque can constitute an offence and become punishable.

The first condition is that the cheque ought to have 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. The second condition is that the payee or the holder in due course of the cheque, as the case may be, ought to make 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. The third condition is that the drawer of such a cheque should have failed to make 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

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notice. It is only upon the satisfaction of all the three conditions mentioned above and enumerated under the proviso to Section 138 as clauses (a), (b) and (c) thereof that an offence under Section 138 can be said to have been committed by the person issuing the cheque.

13. Section 142 of the Negotiable Instruments Act governs taking of cognizance of the offence and starts with a non obstante clause. It provides that no court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, by the holder in due course and such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138. In terms of clause (c) to Section 142, no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class is competent to try any offence punishable under Section 138.

14. A careful reading of the above provisions makes it manifest that a complaint under Section 138 can be filed only after cause of action to do so has accrued in terms of clause (c) of the proviso to Section 138 which, as noticed earlier, happens no sooner than when the drawer of the cheque fails to make the payment of the cheque amount to the payee or the holder of the cheque within 15 days of the receipt of the notice required to be sent in terms of clause (b) of the proviso to Section 138 of the Act.

21. Section 142 of the Negotiable Instruments Act is perhaps the only penal provision in a statute which uses the expression "cause of action" in relation to the commission of an offence or the institution of a complaint for the prosecution of the offender. A careful reading of Sections 138 and 142, as noticed above, makes it abundantly clear that the cause of action to institute a complaint comprises the three different factual prerequisites for the institution of a complaint to which we have already referred in the earlier part of this order. None of these prerequisites is in itself sufficient to constitute a complete cause of action for an offence under Section 138. For instance if a cheque is not presented within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier, no cause of action would accrue to the holder of the cheque even when the remaining two requirements, namely, service of a notice and failure of the drawer to make the payment of the cheque amount are established on facts. So also presentation of the cheque within the stipulated period without service of a notice in terms of Section 138 proviso clause (b) would give no cause of action to the holder to prosecute the drawer just as the failure of the drawer to make the payment demanded on the basis of a notice that does not satisfy the requirements of clause (b) of the proviso to Section 138 would not constitute a complete cause of action. (emphasis added)

Further, in case of Kamlesh Kumar v. State of Bihar, (2014) 2 SCC 424, it was held that-

15. It is, thus, apparent that the complainant received the information about the dishonour of the cheque on 10-11-2008 itself. However, he did not send the legal notice within 30 days therefrom. We, thus, find that the

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complaint filed by him was not maintainable as it was filed without satisfying all the three conditions laid down in Section 138 of the NI Act as explained in para 12 of the judgment in MSR Leathers [MSR Leathers v. S. Palaniappan, (2013) 1 SCC 177 : (2013) 1 SCC (Civ) 424 : (2013) 2 SCC (Cri) 458] , extracted above.

Further, as per the complaint, the first demand notice was sent by registered post on 25.05.2012 on the address of the accused. The envelope containing notice (Exhibit P-5) was returned on 29.05.2012 with the endorsement that the addressee does not reside in village - Dhamkan. This notice was sent on the address of the accused as reflected in his personal bond. It goes to show that the notice was sent on correct address by Registered Post AD, therefore, there was presumption under Section 27 of the General Clauses Act with regard to service of the notice.

The Supreme Court in case of K. Bhaskaran v. Sankaran Vaidhyan Balan, (1999) 7 SCC 510 observed as under:-

23. Here the notice is returned as unclaimed and not as refused. Will there be any significant difference between the two so far as the presumption of service is concerned? In this connection a reference to Section 27 of the General Clauses Act will be useful. The section reads thus:

"27. Meaning of service by post.--Where any Central Act or Regulation made after the commencement of this Act authorises 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 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."

24. No doubt Section 138 of the Act does not require that the notice should be given only by "post". Nonetheless the principle incorporated in Section 27 (quoted above) can profitably be imported in a case where the sender has despatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such non-service. Any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to the strategy of subterfuge by successfully avoiding the notice.

25. Thus, when a notice is returned by the sendee as unclaimed such date would be the commencing date in reckoning the period of 15 days contemplated in clause (c) to the proviso of Section 138 of the Act. Of

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course such reckoning would be without prejudice to the right of the drawer of the cheque to show that he had no knowledge that the notice was brought to his address. In the present case the accused did not even attempt to discharge the burden to rebut the aforesaid presumption. Thus, the cause of action for filing of complaint occurred in favour of plaintiff after expiry of 15 days from service of demand notice dated 25.05.2012 on correct address of the accused on 29.05.2012. On such cause of action, complaint for offence punishable under Section 138 of Negotiable Instruments Act should have been filed within 30 days of expiry of period of 15 days from the service of demand notice. Thus, the complaint should have been filed on or before 13th of July, 2012, but the complaint was filed on 23 rd of July, 2012. Thus, the complaint was filed beyond the prescribed period of one month under Section 142(1)(b) of Negotiable Instruments Act. No application for condonation of delay was filed by the complainant. Consequently, the complaint was barred by limitation.

Considering aforementioned aspects of the matter, this Court is of the opinion that learned trial Court has committed no error in holding that the complainant has failed to give demand notice within the period prescribed under Section 138(b) of Negotiable Instruments Act. Further, the complaint was not filed within the period prescribed under Section 142 (1)(b) of Negotiable Instruments Act, if the first notice given on correct address of the accused is taken into consideration. The finding of learned trial Court cannot be said to be contrary to the evidence on record. The judgment is not patently illegal or perverse, therefore, no case for interference in the finding of acquittal is made out. Accordingly, this application for leave to appeal against acquittal deserves to be and is hereby rejected.

Consequently, the appeal also stands dismissed.

(SANJEEV S KALGAONKAR) JUDGE Rks./vijay

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