Shri Banawari Sinha vs Shri Ram Sujit Guwala
2021 Latest Caselaw 1165 Tri

                                          HIGH COURT OF TRIPURA
                                                AGARTALA

                                            Crl. Rev. P. No.67 of 2018
                     Shri Banawari Sinha S/o Late Raj Kumar Labanya Bhusan Sinha,
                     Resident of Village- Baralutma, PO- Baralutma, PS -Salema,
                     District- Dhalai Tripura                    -----Petitioner(s)

                                                  Versus
                     1.Shri Ram Sujit Guwala S/o Late Chandraday Guwala, Resident of
                     Murticherra, PS Kailashahar, District- Unakuti Tripura
                     2.The State of Tripura Represented by PP, High Court of Tripura,
                     Agartala.                                    -----Respondent(s)

                                                     BEFORE
                           HON'BLE MR. JUSTICE S.G.CHATTOPADHYAY

                     For the Petitioner(s)       :     Mr. H.K.Bhowmik, Adv.
                     For the Respondent(s)       :     Mr.P.Roy Barman, Sr.Adv
                                                       Mr.K.Nath, Adv.
                                                       Mr.Ratan Datta, PP.
                     Date of hearing             :     02.09.2021
                     Date of delivery of
                     Judgment and order          :     26.11.2021
                     Whether fit                 :      Yes No.
                     for reporting                          

                                                 JUDGMENT

[1] This Criminal Revision Petition is directed against the

judgment and order dated 07.03.2011 passed by the Sessions Judge,

Unakoti Judicial District, Kailashahar in case No. Criminal Appeal

No.05(1) of 2018 affirming the judgment and order dated 30.01.2018

passed by the Chief Judicial Magistrate, Kailashahar in case No.

CR(NI) 01 of 2011 convicting the petitioner under Section 138 of the

NI Act and sentencing him to SI for 6 months and fine of

Rs.4,50,000/- with default stipulation.

[2] Factual background of the case is as under:

Complainant was a retired member of Border Security

Force (BSF) who used to visit the Kailashahar branch of State Bank

of India for drawing his pension in every month where accused

Banwari Sinha was a cashier. The complainant thus came in contact

with the accused and they developed a good relationship. On

31.10.2010 accused met the complainant in his house and requested

him to give a loan of Rs.4,50,000/- to him to meet some urgent

requirements. Accused assured the complainant that he would pay

back the money within next 45 days. On good faith complainant

gave a loan of the amount of Rs.4,50,000/- to the accused and the

accused in turn issued a cheque bearing Nos.CAB00/134-838693

dated 13.11.2010 for an amount of Rs.4,50,000/- drawn on the SBI

in favour of the complainant and instructed the complainant to

present the cheque at the bank for encashment only after 45 days.

Accordingly, the complainant presented the cheque to the SBI at the

Kailashahar branch on 29.12.2010 for encashment. But the cheque

was returned with the endorsement that the accused had insufficient

fund in his account. On 22.01.2011 i.e. within 30 days of the

dishonor of the said cheque, complainant issued a notice through his

counsel to the petitioner. The notice was returned unserved with the

endorsement of the postal authorities that accused was "out of station

for long time". Thereafter, the complaint was filed since the accused

petitioner did not pay back the loan to the complainant.

[3] The trial court took cognizance of offence punishable

under Section 138 NI Act and after examining the complainant under

Section 200 Cr.P.C, summoned the accused. Trial commenced with

the examination of the accused under Section 251 Cr.P.C.The

following substance of accusation was explained to the accused

petitioner in terms of Section 251 Cr.P.C:

"That you on 13.11.2010 took Rs.4,50,000/- from the complainant, Ram Sujit Gowala and on that day itself you gave a cheque of Rs.4,50,000/- to the complainant to clear the payment and that cheque was deposited by the complainant in his bank account in the SBI, Manik Bhandar Br. But the cheque was returned back with endorsement that there was insufficient fund in your account and a statutory notice was served on you by the complainant to make the payment but you did not clear the payment in due time and that you thereby committed an offence punishable U/S 138 NI Act"

Accused pleaded not guilty and desired to stand trial.

[4] In the course of trial, learned Chief Judicial Magistrate

framed the following point for determination:

"Point for determination

Whether on 13-11-2010 accused Sri. Banwari Sinha drew a cheque bearing no.CAB00/134-838693 for a sum of Rs.4,50,000/-(rupees four lacs fifty thousand) in favour of complainant Sri Ram Sujit Gowala in discharge of his debt/liability which cheque was dishonoured and returned unpaid by the drewee Bank owing to the reason of insufficient balance in the account of the accused to honour the cheque"

[5] During trial, complainant examined himself as PW-1

and one Ramananda Gowala as PW-2. This apart, he produced the

dishonoured cheque which was taken into evidence as exhibit 01.

Complainant also produced the original cheque return memo dated

30.12.2010, advocate's notice dated 22.01.2011 and postal receipt

dated 22.01.2011of the said notice which were marked as Exhibit 2,3

and 4 respectively. After the recording of the prosecution evidence

was over, accused was examined under Section 313 Cr.P.C. It

appears from the memo of the said examination of the accused that

the learned trial court explained the incriminating materials to the

accused appearing in evidence against him. In response, accused

abjured his guilt and claimed that the charge was foisted on him. He

declined to adduce any evidence on his defence.

[6] Having appreciated the evidence, the learned trial court,

after hearing the parties at length and considering the submissions

made by their counsel, held the accused guilty of offence punishable

under Section 138 NI Act and sentenced him to SI for 6 months with

a fine of Rs.4,50,000/- with default stipulation and directed that fine

if realized, be paid to the complainant namely Ramsujit Goala.

Relevant extract of the judgment of the trial court is as under:

"41.In the result, the convict namely Sri Banawari Sinha is

hereby sentenced to suffer Simple Imprisonment (SI) for six

(6) months and is also sentenced to pay fine of Rs.4,50,000/-

(Rupees four lacs fifty thousand) only for the commission of

offence punishable u/s. 138 of the NI Act, in default to pay the

amount of fine to suffer Simple imprisonment for 6 (six)

months.

42.The surety of the accused-convict stands discharged from

the liability of the bail bond.

43. In the event of realization of the fine money amounting to

Rs.4,50,000/- (Rupees four lacs fifty thousand), the same shall

be paid to the complainant of this case namely Sri Ram Sujit

Goala as compensation in terms of Section 357 of CrPC."

[7] Aggrieved by and dissatisfied with the judgment and

order of conviction and sentence passed by the trial court, accused

petitioner presented an appeal in the court of the Sessions Judge of

Unakoti Judicial District at Kailashahar. The learned Sessions Judge

by the impugned judgment affirmed the conviction and sentence of

the petitioner under Section 138 NI Act viewing as under:

"7. These two witnesses have clearly and convincingly proved the episode of the payment of loan, handing over the cheque and also the episode of dishonoring the cheque by the bank on the ground of insufficient balance in the savings account of the appellant. The evidence on record vividly proves the commission of offence by the appellant. While arguing the case, learned counsel of the appellant Mr. R.R. Kar drew attention of the court that the notice was not served properly to the appellant, because the appellant himself did not receive the notice. On perusal of the judgment of the learned trial court it is found that learned trial court had discussed regarding the receipt of the notice and found no illegality in service of notice to the appellant. It is fact that the appellant did not receive the notice, but from the report of Postal Department it is fond that the appellant was out of station for a long time for which the Department could not serve the notice to him directly. Learned trial court viewed that the notice was served properly on the count of 'deemed to have been served'. From the evidence of PW 1, the complainant and the respondent no. 1 in this case that the appellant requested him to deposit the cheque after 45 days. Why the appellant had fixed the date of long delay of 45 days, creates a suspicion in the mind of the court and it also grows an inference to the effect that appellant was very much aware of the fact that he had no money in his account. He was also aware of the fact that the respondent no. 1 could serve him notice and he intentionally asked the respondent no. 1 to deposit the cheque after 45 days so that by this time he could evade from the address. This shows the criminal intention of the appellant and he wanted to get away from the legal complicacy. The appellant was a bank employee and he has fair knowledge about the provisions of NI Act and as such, to get away from the legal clutch and to evade from having been served the notice, he intentionally remained himself out of station. On perusal of the reply of the appellant in his examination U/s 313 of Cr.P.C it is also found that the appellant admitted the same address to which the notice was served and as such, the explanation offered by the learned trial court regarding receipt of the notice by the appellant is justified.

8. To prove a case U/s 138 of the NI Act following requirements are to be fulfilled:-

I) Drawing of the cheque,

II) Presentation of the cheque 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,

III) Returning of the cheque unpaid by the drawee bank due to insufficiency of funds or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank,

IV) Giving notice in writing to the drawer of the cheque within 30 days of the receipt of information about the dishonor demanding payment of the cheque amount, and

V) Failure of the drawer to pay the cheque amount to the payee within 15 days of the receipt of the said notice.

9. In the case at hand all these above referred requirements have been fulfilled. The appellant drew a cheque, the respondent no. 1 presented the cheque to the bank within a period of six months from the date on which it is drawn, the drawee bank returned the cheque unpaid due to insufficiency of funds, the respondent no. 1 served notice in writing to the drawer of the cheque within 30 days of the receipt of information about the dishonor demanding payment of the cheque amount and the appellant also failed to pay the cheque amount to the respondent no. 1 within 15 days of the receipt of the said notice. Thus, the prosecution has successfully proved all the requirements by the evidence of the PW 1 and the respondent no.1 in this appeal and duly corroborated by PW 2.

10. In view of the above discussion it is clearly proved that the appellant Sri Banwari Sinha has committed an offence punishable U/s 138 of the NI Act and accordingly learned trial court has rightly come to the findings in regard to convicting the appellant and sentencing him therefor U/s 138 of the NI Act and therefore, it is held that the conviction and sentence as awarded by the learned trial court against the appellant is upheld and deserves no interference."

[8] Heard Mr.H.K.Bhowmik, learned counsel appearing for

the petitioner. Heard Mr.P.Roy Barman, learned Sr.Advocate

appearing along with Mr.K.Nath, advocate for the complainant.

[9] Bone of contention of Mr.Bhowmik, learned counsel is

that neither the impugned cheque nor any other document which was

taken into evidence on behalf of the prosecution were shown to the

accused in the course of his examination under Section 313 Cr.P.C.

As a result, accused was denied reasonable opportunity to explain

the incriminating circumstances appearing against him in evidence

and consequently he failed to project a defence case and the purpose

of Section 313 Cr.P.C was frustrated. Counsel submits that non

indication of such significant inculpatory material during the

examination of the accused under Section 313 Cr.P.C has vitiated the

trial for which accused deserves an order of acquittal. Counsel

contends that opportunity provided to the accused under Section 313,

Cr.P.C is a valuable right and an integral part of fair tial. In support

of his contention Mr.Bhowmik learned counsel has relied on the

decision of the Hon'ble Supreme Court in PARMINDER KAUR VS.

STATE OF PUNJAB reported in (2020) 8 SCC 811 wherein the

Apex Court vide paragraph 22 of the judgment has held as under:

"22. Under the Code of Criminal Procedure, 1973 after the prosecution closes its evidence and examines all its witnesses, the accused is given an opportunity of explanation through Section 313(1)(b). Any alternate version of events or interpretation proffered by the accused must be carefully analysed and considered by the trial Court in compliance with the mandate of Section 313(4). Such opportunity is a valuable right of the accused to seek justice and defend oneself. Failure of the trial Court to fairly apply its mind and consider the defence, could endanger the conviction itself. Unlike the prosecution which needs to prove its case beyond reasonable doubt, the accused merely needs to create reasonable doubt or prove their alternate version by mere preponderance of probabilities. Thus, once a plausible version has been put forth in defence at the Section 313 CrPC examination stage, then it is for the prosecution to negate such defense plea. "

[10] Counsel has also relied on the decision of the Apex

Court in Munna Kumar Upaddhaya @Munna Upadhyaya vs. State

of Andhra Pradesh reported in AIR 2012 SC 2470 wherein the

Apex Court vide paragraph 49 of the Judgment has held as under:

"49. Most importantly, the recovery of incriminating articles, cash and jewellery belonging to the deceased, the finger prints of the accused and the false stories given by the accused to different persons who came to the bungalow of the deceased during 17th/18th March, 2003, to ensure that none of them enter the house of the deceased stand unequivocally established. Besides all this circumstantial evidence, another very significant aspect of the case is that none of the accused, particularly accused No.2, offered any explanation during the recording of their statements under Section 313 CrPC. It is not even disputed before us that the material incriminating evidence was put to accused No. 2 while his statement under Section 313 CrPC was recorded. Except for a vague denial, he stated nothing more. In fact, even in response to a question relating to the injuries that he had suffered, he opted to make a denial, which fact had duly been established by the statements of the investigating officers, doctors and even the witnesses who had seen him immediately after the crime. It is a settled law that the statement of Section 313 CrPC is to serve a dual purpose, firstly, to afford to the accused an opportunity to explain his conduct and secondly to use denials of established facts as incriminating evidence

against him. In this regard, we may refer to some recent judgements of this Court.

This Court in the case of Asraf Ali v. State of Assam [(2008) 16 SCC 328] has observed as follows :

"21. Section 313 of the Code casts a duty on the court to put in an enquiry or trial questions to the accused for the purpose of enabling him to explain any of the circumstances appearing in the evidence against him. It follows as a necessary corollary therefrom that each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately and failure to do so amounts to a serious irregularity vitiating trial, if it is shown that the accused was prejudiced.

22. The object of Section 313 of the Code is to establish a direct dialogue between the court and the accused. If a point in the evidence is important against the accused, and the conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it. Where no specific question has been put by the trial court on an inculpatory material in the prosecution evidence, it would vitiate the trial. Of course, all these are subject to rider whether they have caused miscarriage of justice or prejudice. This Court also expressed a similar view in S. Harnam Singh v. State (Delhi Admn.) while dealing with Section 342 of the Criminal Procedure Code, 1898 (corresponding to Section 313 of the Code). Non-indication of inculpatory material in its relevant facts by the trial court to the accused adds to the vulnerability of the prosecution case. Recording of a statement of the accused under Section 313 is not a purposeless exercise." Again, in its recent judgment in Manu Sao v. State of Bihar [(2010) 12 SCC 310], a Bench of this Court to which one of us, Swatanter Kumar, J., was a member, has reiterated the above-stated view as under :

"12. Let us examine the essential features of this Section 313 CrPC and the principles of law as enunciated by judgments, which are the guiding factors for proper application and consequences which shall flow from the provisions of Section 313 of the Code.

13. As already noticed, the object of recording the statement of the accused under Section 313 of the Code is to put all incriminating evidence against the accused so as to provide him an opportunity to explain such incriminating circumstances appearing

against him in the evidence of the prosecution. At the same time, also to permit him to put forward his own version or reasons, if he so chooses, in relation to his involvement or otherwise in the crime. The court has been empowered to examine the accused but only after the prosecution evidence has been concluded. It is a mandatory obligation upon the court and besides ensuring the compliance therewith the court has to keep in mind that the accused gets a fair chance to explain his conduct. The option lies with the accused to maintain silence coupled with simpliciter denial or in the alternative to explain his version and reasons for his alleged involvement in the commission of crime. This is the statement which the accused makes without fear or right of the other party to cross-examine him. However, if the statements made are false, the court is entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. The primary purpose is to establish a direct dialogue between the court and the accused and to put to the accused every important incriminating piece of evidence and grant him an opportunity to answer and explain. Once such a statement is recorded, the next question that has to be considered by the court is to what extent and consequences such statement can be used during the enquiry and the trial. Over the period of time, the courts have explained this concept and now it has attained, more or less, certainty in the field of criminal jurisprudence.

14. The statement of the accused can be used to test the veracity of the exculpatory nature of the admission, if any, made by the accused. It can be taken into consideration in any enquiry or trial but still it is not strictly evidence in the case. The provisions of Section 313(4) explicitly provides that the answers given by the accused may be taken into consideration in such enquiry or trial and put in evidence against the accused in any other enquiry or trial for any other offence for which such answers may tend to show he has committed. In other words, the use is permissible as per the provisions of the Code but has its own limitations. The courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this section should not be considered in isolation but in conjunction with evidence adduced by the prosecution."

Mr.Bhowmik, learned counsel of the petitioner further

contends that the service of notice is a sign qua non for prosecution

under Section 138 NI Act. The record would reveal that no statutory

notice was served on the accused petitioner. Counsel therefore, urges

the court to set aside the impugned judgment and order of conviction

and sentence of the petitioner.

[11] Mr.P.Roy Barman, learned Sr.Advocate appearing for

the complainant submits that complainant being a pensioner on good

faith gave loan of a huge sum of Rs.4,50,000/- to the accused since

the accused who was a bank employee assured the complainant that

he would pay back the money within 45 days. According to Mr.Roy

Barman, learned Sr.Advocate, it has been proved that accused issued

the impugned cheque of Rs.4,50,000/- which was later dishonoured

by his banker for insufficient fund in his bank account. The fact was

brought to the notice of the accused by issuing statutory demand

notice within stipulated time. But the accused intentionally avoided

the service of the notice and repayment of the loan. Counsel submits

that all these circumstances were brought to the notice of the accused

during his examination under Section 313 Cr.P.C. Therefore, the

accused petitioner cannot take a plea that he was denied opportunity

to make out a defence case since the incriminating evidence was not

properly explained to him during his examination under Section 313

Cr.P.C. Counsel submits that where there is a concurrent findings of

the courts below, this court cannot re-appreciate the evidence and

come to its own conclusion in exercise of revisional power. In

support of his contention Mr.Roy Barman has relied on the decision

of the Apex Court in State of Kerala vs. Putthumana Illath

Jathavedan Namboodiri reported in (1999) 2SSC 452 wherein the

Apex Court in paragraph 5 of the judgment has held as under:

"5.Having examined the impugned Judgment of the High Court and bearing in mind the contentions raised by the learned counsel for the parties, we have no hesitation to come to the conclusion that in the case in hand, the High Court has exceeded its revisional jurisdiction. In Its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of Supervisory Jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an Appellate Court nor can it be treated even as a second Appellate Jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re- appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tentamount to gross miscarriage of justice. On scrutinizing the impugned Judgment of the High Court from the aforesaid stand point, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by re-appreciating the oral evidence. The High Court also committed further error in not examining several items of evidence relied upon by the Additional Sessions Judge, while confirming the conviction of the respondent. In this view of the matter the impugned Judgment of the High Court is wholly unsustainable in law and we, accordingly set aside the same. The conviction and sentence of the respondent as passed by the Magistrate and affirmed by the Additional Sessions Judge in

appeal is confirmed. This appeal is allowed. Bail bonds furnished stand cancelled. The respondent must surrender to serve the sentence."

[12] With regard to the service of statutory demand notice,

counsel has relied on the decision dated 17.11.2020 of this court in

Crl.Rev.P.No.79 of 2017 whereby it was held by this court that

notice, duly directed, shall serve the purpose of law. In the said

judgment, earlier decision of this Court in Keshab Banik

Vs.Shekhar Banik reported in 2013 1TLR528 was relied upon

wherein this court decided as under:

"9.Section 94 of the NI Act prescribes the very mode of giving notice which reads, thus:

94.Mode in which notice may be given- Notice of dishonor 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 dishonor, at the place of business or (in case such paty has no place of business) at the residence of the party for whom it is intended.

If the notice is duly directed an sent by post and miscarries, such miscarriage does not render the notice invalid"

The above provision makes it clear that the notice, if duly directed, shall serve the purpose of law.

We may gainfully refer here the observation of the Apex Court in the case of K.Bhaskaran v. Vaidhyan Balan and

Anr. AIR 1999 SC 3762: (1999)7 SCC 510 which reads thus:

"18.On the part of the payee he has to make a demand by "giving a notice" in writing. If that was the only requirement to complete the offence on the failure of the drawer to pay the cheque amount within 15 days from the date of such `giving' the travails of the prosecution would have been very much lessened. But the legislature says that failure on the part of the drawer to pay the amount should be within 15 days "of the receipt" of the said notice. It is, therefore, clear that "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 in the correct address.

19.In Black's Law Dictionary, "giving of notice" is distinguished from "receiving of the notice." (vide page 621) "A person notifies or gives notice to another by taking such steps as may be reasonably required to inform the other in the ordinary course, whether or not such other actually comes to know of it." A person "receives" a notice when it is duly delivered to him or at the place of his business.

20.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.

21.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 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 demand" by giving notice. The thrust in the clause is on the need to "make a demand". 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 despatched his part is over and the next depends on what the sendee does.

22.It is well settled that a notice refused to be accepted by the addressee can be presumed to have been served on him, -vide Harcharan Singh v. Smt. Shivrani and Ors., (1981) 2 SCC 535, and Jagdish Singh v. Natthu Singh, (1992) 1 SCC 647:AIR (1992)SCW 1747:AIR 1992 SC 1604

23. Here the notice is returned as unclaimed and not as refused. Will there be any significant different 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 Regulations 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 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."

In the case of V.Raja Kumari v. P.Subbarama Naidu and Anr. AIR 2005 SC 109 the Apex Court observed, thus:

"The context envisaged in Section 138 of the Act invites a liberal interpretation for the person who has statutory obligation to give notice. If a strict interpretation is given that the drawer should have actually received the notice or 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 the court should not adopt an interpretation which helps a dishonest evader, and clips on honest payee as that would defeat the very legislative measure.

The payee has statutory obligation to give notice because he is presumed to be the loser in the transaction. Payee has to make demand by "giving a notice" in writing. If that was the only requirement to complete the offence on the failure of the drawer to pay cheque amount within 15 days from the date of such "giving", the travails of

the prosecution would have been very much lessened. But the Legislature say that failure on the part of the drawer to pay amount should have been within 15 days "of the receipt" of the said notice. It is, therefore, clear that 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 correct address. Once it is despatched his part is over and the next depends on what sendee does."

In the case of Indo Automobiles v. Jai Durga Enterprises And Ors.; AIR 2009 SC 386 the Apex Court has reiterated the same view and held thus:

" Admittedly, notice under section 138B of the Negotiable Instruments Act was sent to the respondents through registered post and under a certificate of posting on their correct address of the respondents.

The High Court had quashed proceeding on the ground that although notice through registered post and also under certificate of posting were sent by the appellant/ complainant to the respondents but because of the endorsement of the postal peon, the service could not be said to have been effected. In our view, the High Court was not justified in holding that service of notice could not be found to be valid."

[13] Counsel submits that case against the accused stands

proved and therefore, the impugned judgment does not call for any

interference in appeal.

[14] The complainant has produced the impugned cheque

bearing No.CAB00/134 838693 dated 13.11.2010 of the sum of

Rs.4,50,000/- which has been taken into evidence and marked as

exhibit -1 during the trial. During the entire cross-examination of the

complainant, accused never denied the issuance of the cheque. He

did not even make any suggestion that the document was

manufactured by the complainant. He did not also disown his

signature on the said cheque. PW-2, Ramananda Goala stated in his

cross examination that he accompanied the complainant to the house

of the accused where the complainant paid Rs.4,50,000/- to the

accused in his presence. In cross examination, PW-2 confirmed that

immediately after receiving the payment of the loan accused issued

the impugned cheque to the complainant and requested him to

present the cheque at bank for encashment at the end of the month.

Subsequently, when the cheque was presented at the bank, it was

dishonoured for insufficiency of the fund in the account of the

accused. During the cross examination of PW-2, accused did not also

deny the cheque or his signature thereon. During his examination

under Section 313 CrP.C. under questions No.2 and 4, the evidence

of PW-1 and 2 with reference to the cheque number were explained

to the accused. Accused simply replied that their evidence was false.

[15] It is settled that Section 138 NI Act requires proof of the

following essential ingredients :

(ii) The cheque is drawn on an account maintained

by the accused with his banker for payment of any amount to another

person from his account in discharge in the whole or part of the debt

or liability and

(iii) The cheque is returned by the banker in all

either because of insufficient fund in the account of the accused to

honour the cheque or that the cheque amount exceeds the amount

arranged to be paid from that account by an agreement made with

the banker.

[16] In the present case, the complainant has presented a

probable story supported by evidence. It stands established that he

developed a relationship with the accused who was a cashier at the

Kailashahar branch of SBI where the complainant used to come for

drawing his pension. It is not denied that as an employee of the bank

the accused maintained a bank account in the said branch of the

bank. The fact that the accused visited the house of the complainant

and requested him to give loan of Rs.4,50,000/- also stands

established. PW-2 has supported the evidence of complainant PW-1

that in his presence the complainant gave the loan in cash to the

accused and in turn the accused had issued the impugned cheque to

the complainant and requested him to present the cheque at the bank

at the end of the month. During cross examination of PW-1 and 2,

accused did not deny the cheque nor he disowned his signature

thereon. During his examination under Section 313 Cr.P.C also he

did not project any defence case. He simply stated that the evidence

of PW-1 and 2 were false.

[17] The statutory presumption under Section 139 read with

the Rule of Evidence as provided under Section 118 NI Act with

regard to the existence of debt or liability is not a discretionary

presumption, it is a statutory presumption which is obligatory on the

part of the court. A huge burden is cast on the accused to rebut such

presumption by adducing reasonably probable defence. It cannot be

rebutted by merely offering an explanation. In the case of Hiten

P.Dalal vs. Bratindranath Bannerjee reported in (2001) 6 SCC 16

the Apex Court held as under:

"21. The appellant's submission that the cheques were not drawn for the 'discharge in whole or in part of any debt or other liability' is answered by the third presumption available to the Bank under Section 139 of the Negotiable Instruments Act. This section provides that :

"139. It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability.

"The effect of these presumptions is to place the evidential burden on the appellant of proving that the cheque was not received by the Bank towards the discharge of any liability.

22. Because both Sections 138 and 139 require that the Court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn, as noted in State of Madras vs. A. Vaidyanatha Iyer, AIR 1958 SC 61, it is

obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. "It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused" (ibid at p 65, para 14). Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court "may presume" a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter, all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the nonexistence of the presumed fact.

23. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the Court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, "after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists".

Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the 'prudent man'."

[18] Similarly, in the case of Mallavarapu Kasivisweswara

Rao vs. Thavikonda Ramulu Firm and Ors. reported in (2008) 7 SCC

655 the Hon'ble Supreme Court has held that it is a settled

proposition that initial burden lies on the defendent to prove the non

existence of consideration. The relevant passage of the judgment

may be gainfully reproduced which is as under:

"17. Under Section 118(a) of the Negotiable Instruments Act, the court is obliged to presume, until the contrary is proved, that the promissory note was made for consideration. It is also a settled position that the initial burden in this regard lies on the defendant to prove the non-existence of consideration by bringing on record such facts and circumstances which would lead the Court to believe the nonexistence of the consideration either by direct evidence or by preponderance of probabilities showing that the existence of consideration was improbable, doubtful or illegal....."

[19] In the instant case, apparently the accused petitioner

did not lead any evidence in rebuttal of such statutory presumptions.

He has also failed to bring on record such facts and circumstances

which would make the courts believe that the liability, attributed to

the accused petitioner was improbable or doubtful.

[20] In the case of KISHAN RAO VS. SHANKARGOUDA

reported in (2018) 8 SCC 165 the Apex Court has succinctly held that

mere denial of the existence of debt shall not serve any purpose in a

proceeding under Section 138 NI Act. Something which is probable

has to be brought on record for getting the burden of proof shifted to

the complainant. Observation of the Apex Court in this regard in

para 20 of the judgment is as under:

"20. This Court held that the accused may adduce evidence to rebut the presumption, but mere denial regarding existence of debt shall not serve any purpose. Following was held in paragraph 20:

"20....The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or

liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist..."

[21] With regard to the plea of the accused regarding non

service of the statutory notice, the trial court as well as the appellante

court has rightly held that notice dated 22.01.2011 [Exhibit-3] was

dispatched to the known address of the accused by the registered

post and the same was returned unserved with a postal endorsement

to the effect that the addressee was out of station for long time.

[22] It is a settled proposition of law that if the notice is

properly addressed and dispatched to the address that will serve the

purpose unless it is proved by leading evidence that the complainant

knew that the accused lived elsewhere and the address was incorrect

or that it was within the knowledge of the complainant that he lived

elsewhere when the notice was dispatched to the said address. From

the given facts and circumstances of the case it can be safely

presumed that the accused avoided the service of notice with a view

to get rid of the liability. In view of the decision of this court in

Keshab Banik vs Shekhar Banik (supra) the plea of the accused

that the statutory notice was not served on him is unacceptable.

[23] As discussed, learned counsel of the petitioner has

referred to the decision of the Hob'ble Apex Court in the case of

Parminder Kaur(supra) and the decision in the case of Munna

Kumar Upadhyaya alias Munna Upadhyaya (supra). The facts

and circumstances of the present case being completely

distinguishable the accused cannot derive any benefit from these

judgments.

[24] In view of what is discussed above, this court is of the

view that there is no reason to interfere with the concurrent findings

of the courts below with regard to conviction of the petitioner under

Section 138 NI Act. As a result, his conviction under Section 138 NI

Act is upheld.

[25] In so far as the sentence of the petitioner is concerned,

this court is of the view that the sentence should be reduced to a fine

of Rs.4,50,000/- only and ID to SI for 6 months. The fine on

realization be paid to the complainant immediately. Convict

petitioner is directed to deposit the fine of a sum of Rs.4,50,000/- at

the trial court (court of the Chief Judicial Magistrate, Unakoti

Judicial District at Kailashahar) within a period of 2 months form

today failing which the trial court shall take steps in accordance with

law to commit the convict petitioner to prison to suffer the default

sentence.

[26] Communicate this order to the trial court immediately.

In terms of the above, the petition stands disposed of.

Interim application(s), if any, shall also stand disposed

of.

Send back the LCR.

JUDGE

Saikat Sarma, P.S-II