Orissa High Court
Sri Bidhubhusan Mohanty vs Prafulla Kumar Mohanty on 12 October, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK.
CRA No. 173 of 1997
(An Appeal under Section 378(4) of the Criminal Procedure Code, 1973, challenging
the judgment and order of acquittal dated 19.07.1996 passed by the C.J.M., Khurda
at Bhubaneswar in ICC No.26 of 1994 for the offence u/s.138 of the N.I. Act, 1881).
-----------------
Sri Bidhubhusan Mohanty ... Appellant
Mr. K.P. Nanda, Advocate
Versus
Prafulla Kumar Mohanty ... Respondent
Mr. G.C. Pattanaik, Advocate
CORAM :
JUSTICE CHITTARANJAN DASH
--------------------------------------------------------------------------------------------------------
Date of Judgment : 12.10.2023
--------------------------------------------------------------------------------------------------------
1. This Appeal is directed against the judgment and order of acquittal
dated 19.07.1996 passed by the C.J.M., Khurda at Bhubaneswar in ICC
No.26 of 1994, whereby the accused-Respondent has been acquitted of
the offence punishable under Section 138 of the Negotiable Instruments
Act, 1881 (hereinafter referred to as "N.I. Act").
2. The brief facts of the case are that, the Appellant-complainant is one of
the partners of the Farm named M/s. G.N. Mohanty and Co. then dealing
with pesticides and other articles. The accused-Respondent had taken
pesticides worth of Rs.61,910.40 paise from the said Farm under Challan
No.198 dated 24.02.1993 and Sale Memo No.441 dated 04.03.1993
against which the accused-Respondent issued a Cheque bearing No.
694420 dated 19.11.1993 drawn on State Bank of India, Pipili Branch for
the said amount of Rs.61,910.40 paise in favour of the Appellant. The
complainant-Appellant presented the said cheque with his banker M/s.
UCo Bank, Bhubaneswar for collection of the amount, but the cheque
was dishonoured due to "insufficiency of fund". The fact of dishonour
was intimated to the Appellant-complainant by the Bank on 01.12.1993,
which the Appellant came to know on 02.12.1993. So the Appellant-
complainant approached the Respondent-accused and offered him a
return Notice to pay the dishonoured amount. But the Respondent-
accused refused to receive that notice, where after the Appellant- sent the
notice to the accused-Respondent by registered Post in the mode of
Under Certificate of Posting on 03.12.1993. On 15.12.1993 he again sent
Lawyer's Notice by Registered Post with AD, which the Respondent-
accused refused to receive. Having failed in his attempt to get return of
the dishonoured cheque amount, the complainant-Appellant filed a
Complaint before the competent Court registered as ICC No.26 of 1994.
On recording the sworn statement of the complainant-Appellant notice
was issued against the accused/Respondent.
3. On the denial of the charges by the Respondent-accused the court
proceeded with the trial.
4. The complainant-Appellant to substantiate his case while examined
himself as P.W.1, examined the Bank Manager of State Bank of India,
Pipili Branch as P.W.2 and the Postmaster, Pipili Post Office as P.W.3.
The Respondent-accused on the other hand examined himself as the sole
Defence Witness in support of his case.
5. As seen from the case record, the sole plea of the accused-Respondent
in denying his liability was that he has not received any pesticides from
the Farm of the Appellant-complainant while admitted the issuance of the
cheque in favour of the complainant Farm.
6. The case having been transferred to the court of the learned C.J.M.,
Khurda at Bhubaneswar, the matter was tried by the learned C.J.M.,
Khurda, who pronounced the judgment impugned herein.
7. The trial court on analysis of the evidence adduced by the Appellant-
complainant and that of the defence, arrived at a factual finding that the
Respondent-accused had duly issued the cheque for a sum of
Rs.61,910.40 paise in favour of the Appellant-complainant in
discharging of his debt as against purchase of the pesticides. It is also
held by the trial court that the Appellant-complainant had presented the
cheque with his Banker, who intimated the fact of dishonour of the
cheque. The trial court was also of the opinion that the Notice was served
on the Respondent-accused in accordance with law. The sole ground on
which the trial court did not find the Appellant-complainant to have
established his case is in respect of the fact that the complaint was filed
after expiry of the period of limitation. According to the learned court
Notice was sent through Under Certificate of Posting on 03.12.1993 and
the subsequent Notice was sent through Registered Post on 15.12.1993.
Since the notice under registered post was refused by the respondent
accused on 18.12.1993. The learned trial court took 18.12 1993 to be the
date for cause of action and held the complainant to have filed the
complaint on 19.12.1993.
8. Needless to mention that, the cause of action for filing complaint arises
when notice is served on the drawer and drawer fails to make payment of
the amount of cheque within 15 days. Limitation to file complaint is one
month from the date of cause of action.
9. Section 94 of Negotiable Instruments Act, 1881, reads as under:
"94. Mode in which notice may be given - Notice of
dishonour may be given to a duly authorized agent of the person
to whom it is required to be given, or, where he has died, to his
legal representative, or, where he has been declared an insolvent,
to his assignee; may be oral or written; may, if written, be sent
by post; and may be in any form; but it must inform the party to
whom it is given either in express terms or by reasonable
intendment that the instrument has been dishonoured, and in
what way, and that he will be held liable thereon; and it must be
given within a reasonable time after dishonour, at the place of
business or (in case such party has no place of business) at the
residence of the party for whom it is intended. If the notice is
duly directed and sent by post and miscarries, such miscarriage
does not render the notice invalid."
10. Section 17 of General Clauses Act, 1897, reads as under :
Substitution of functionaries.(1) In any 31 [Central Act] or
Regulation made after the commencement of this Act, it shall be
sufficient, for the purpose of indicating the application of a law
to every person or number of persons for the time being
executing the functions of an office, to mention the official title
of the officer at present executing the functions, or that of the
officer by whom the functions are commonly executed. (2) This
section applies also to all [Central Acts] made after the third day
of January, 1868, and to all Regulations made on or after the
fourteenth day of January, 1887.
11. In the decision reported in 2014 STPL 9253 SC [2014 (AIR (SCW)
4321] in the case of Ajeet Seeds Ltd. vs. K.Gopala Krishnaiah, the
Hon'ble Apex Court has held as under:
"14. Section 27 gives rise to a presumption that service of notice
has been effected when it is sent to the correct address by
registered post. In view of the said presumption, when stating
that a notice has been sent by registered post to the address of
the drawer, it is unnecessary to further aver in the complaint that
in spite of the return of the notice unserved, it is deemed to have
been served or that the addressee is deemed to have knowledge
of the notice. Unless and until the contrary is proved by the
addressee, service of notice is deemed to have been effected at
the time at which the letter would have been delivered in the
ordinary course of business. This Court has already held that
when a notice is sent by registered post and is returned with a
postal endorsement 'refused' or 'not available in the house' or
'house locked' or 'shop closed' or 'addressee not in station', due
service has to be presumed. [Vide Jagdish Singh Vs. Natthu
Singh (1992) 1 SCC 647; State of M.P. Vs. Hiralal & Ors.
(1996) 7 SCC 523 and V.Raja Kumari Vs. P.Subbarama Naidu
& Anr. (2004) 8 SCC 74 referred] 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. It is thus clear that Section 114 of the Evidence Act
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. Section 27 of the GC Act gives rise
to a presumption that service of notice has been effected when it
is sent to the correct address by registered post. It is not
necessary to aver in the complaint that in spite of the return of
the notice unserved, it is deemed to have been served or that the
addressee is deemed to have knowledge of the notice. Unless
and until the contrary is proved by the addressee, service of
notice is deemed to have been effected at the time at which the
letter would have been delivered in the ordinary course of
business."
12. Following the principles as above it is not disputed here that the
notice has been served in proper address. The evidence, however, is that
the respondent accused refused to receive the same. A close scrutiny of
the evidence further emerges that the complainant issued the demand
notice by registered post on 15.12.1993. Even though the accused
respondent refused to receive the notice on 18.12.1993, the statutory
period of 15 days has to be waited, i.e. the period by which the
accused/respondent has been asked to pay the demand money
irrespective of the fact of his refusal to receive the notice. In essence, it is
after expiry of the 15 days of the demand period that period of 30 days to
be counted within which the complaint is to be filed. Here, in this case
considering the period of notice of 15 days of the demand period and
adding to it the 30 days, the cause of action for filing of the complaint
would be on 30.01.1994 whereas the complaint has been filed on
28.01.1994 which is well within the period limitation. It is, therefore,
fallacious to note that the learned court below wrongly reckoned the date
of cause of action and considered the date of refusal of notice to be the
date of cause of action ignoring the period required to be waited enabling
the accused/ respondent to pay the dishonoured money contrary to the
position of law thereby arrived at a conclusion which is manifestly
illegal.
13. As seen from the evidence all other requirement of law having well
complied and there being no material to rebut the claim of the
complainant and above all the fact as to issuance of the cheque having
been clearly admitted, this Court while allowing the Appeal set aside the
impugned judgment and order of acquittal dated 19.07.1996 passed in
ICC No.26 of 1994 on the files of the CJM, Khurda at Bhubaneswar.
14. The Respondent-accused is convicted for the offence punishable
under Section 138 of the N.I. Act. He is directed to pay fine of
Rs.1,23,820.80 (Rupees One Lakh Twenty Three Thousand Eight
Hundred Twenty and Eighty Paise only). Out of the fine amount, a sum
of Rs.10,000/- shall be remitted to State by way of fine and the remaining
fine amount of Rs.1,13,820.80 shall be paid to the appellant-complainant
by way of compensation along with interest at the rate of 6% p.a. from
the date of complaint till realization of the cheque amount. The amount
shall be deposited within eight weeks from the date of this order. In case
of default, the appellant shall initiate proceedings.
( Chittaranjan Dash )
Judge
S. K. Parida,
ADR-cum-APS
Signature Not Verified
Digitally Signed
Signed by: SAMIR KUMAR PARIDA
Designation: ADR-cum-ADDL. PRINCIPAL SECRETARY
Reason: Authentic Copy
Location: ORISSA HIGH COURT, CUTTACK
Date: 13-Oct-2023 11:43:07
