Single judge dismissed criminal revision challenging conviction under Section 138 NI Act 1881. Court rejected claim that uncollected mail invalidated notice service and found no prejudice from minor date errors in Section 313 CrPC statement.
The criminal revision application was dismissed as having no merit.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL REVISION APPLICATION NO. 65 OF 2003.
Shri Sailesh Shyam Parsekar, resident of Deulwaddo, Parcem, Pernem Goa. ...... Applicant.
Versus
(Through Public Prosecutor). ...... Respondents
Mr. J.P. D'Souza and Ms. Caroline Collasso, Advocates for the Applicant/Accused.
Mr. R.S. Parsekar, Advocate for the Respondent No.1/Complainant.
Mr. S.N. Sardessai, Public Prosecutor for the Respondent No.2.
CORAM: N.A. BRITTO, J.
DATE OF RESERVING THE JUDGMENT: 26.08.2004 DATE OF PRONOUNCING THE JUDGMENT : 2.09.2004
J U D G M E N T:
This revision is filed by the accused in O.A.C. No.62/0 / 2 001.
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Addl. Sessions Judge, Panaji vide his Judgment /Order dated 10.11.2003.
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be returned to the sender and since in this case the notice/s were not kept for seven days, presumption that the notice was duly served cannot be drawn. In support of the said submission, Shri D'Souza has placed reliance on clause 191/1 of the Postal Manual, Chapter 6 wherein it is stated as follows :-
“ 191/1. Period of detention of parcels in the office of delivery. - The period of detention in the office of delivery of inland parcels (except v.p. Parcels and those addressed to the post restant) prescribed by rule 190(1) must be strictly observed. A parcel should be issued for delivery only once, and if it cannot be delivered through any cause on first presentation by the postman, he should return it to the parcel Asstt. With a brief note regarding its nondelivery. A notice of arrival of the parcel (Form R.P.65) should then be prepared by the P.A. And made over to the postman for delivery to the addressee at the next delivery. The addressee's receipt for the intimations should be taken on the lower portion of the form which should be detached and pasted in the book of receipts for intimations and notices delivered. If the addressee cannot be found, the notice may be left with a member of his family for a servant accustomed to receive articles of the unregistered letter mail on his behalf, provided that the recepient signs the receipt mentioned above. Should the addressee fail to take delivery of the parcel at the post office within seven days from the date of presentation of the notice, the parcel should on the expiry of that period, be treated as “unclaimed” and be disposed of in accordance with rule 190. The postmaster must, before returning a parcel, satisfy himself (1) that the notice of arrival has been correctly delivered and (2) that the period of detention has already expired. Delivery of the notice duly receipted by the addressee or his agent, and if registered, on the required conditions being fulfilled.
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cross- examination on that aspect, this submission cannot be accepted. Moreover, the said instructions are for the guidance of the postal employees and not statutory instructions in force which senders of letters are required to follow.
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duly complied by the complainant.
was a case where several circumstances which appeared in the evidence on record and which related to different dates, were included in one question and the explanation of the accused was sought, and, the Division Bench of Karnataka High Court observed that the manner in which the accused was questioned, left much to be desired and the manner in which the accused was examined, in their view, did not afford to the accused a just and fair opportunity to explain the circumstances appearing against him because several distinct matters were mixed up in a single question and some other important circumstances appearing against the accused have not been put to him with specificit.y. The Division Bench therefore thought it fit to send the
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case back to the Trial Court for examination of the accused afresh under S.313 of the Code, observing further that Section 313 of the Code provided an opportunity to the accused “personally to explain any circumstance appearing in the evidence against him”. The answers given by the accused may be taken into consideration in such trial. With a view to provide a fair opportunity t the accused, the law casts the obligation on the Court itself to frame the relevant questions so that the accused may have an opportunity to explain all circumstances appearing against him. To ensure fairness, the questioning is to be done by the Court without the aid of the Counsel and this at once emphasizes the seriousness of the duty cast upon the Court. The Court must question the accused in relation to all incriminating circumstances appearing against the accused. Even if the accused was present when the witnesses deposed against him, the law still casts upon the Court a duty to marshal the evidence and to cull- out all the incriminating circumstances and question the accused in respect thereof so that the accused may offer his explanation. In a sense, the Court must also be satisfied that the accused has understood the circumstances appearing against him and give whatever explanation he had in regard thereto. The Law Commission in its 41 st Report thought that the stage has not yet been reached for the deletion of this provision and may be in future, with better education and better facilities for legal aid this matter may have to be reconsidered in the charged circumstances. As the law stands today, Sec.313 of the Code provides not only the accused an opportunity to explain the circumstances appearing against him, but also the Court an opportunity to have a personal dialogue with the accused to elicit such explanation as he may have to offer, free from the fear of being trapped to make an embarrasing admission or statement or of being led to make any statement
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meant to fill up the lacuna in the prosecution case. The questioning by the Court must inspire this confidence in the accused that the questioning is meant for his benefit and not for the benefit of the prosecution. The purpose of the examination of the accused is only to elicit his explanation in regard to circumstances appearing against him and nothing more. “
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effort has been made on behalf of the Applicant to demonstrate as to what prejudice has been caused to the accused when his case has been one of total denial.
sl. N. A. BRITTO, J.
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3 issues framed by the court
Whether the presumption of service of legal notice is defeated because postal records show the notice was returned as unclaimed within seven days.
Whether an erroneous date recorded in the statement under Section 313 Cr.P.C. or issues regarding date of deposit of cheque vitiate the conviction.
Whether the complaining party demonstrated any prejudice caused by the alleged errors in the examination of the accused.
Colour shows how this judgement treated each authority
K. Bhaskaran v. Sankaran Vaidhyan BalanApplied¶29
K. Bhaskaran v. Sankaran Vaidhyan Balan and another (1999 S.C.C. (Cri) 1284) · Who else cites this
State of Karnataka v. DashrathDistinguished¶34
State of Karnataka v. Dashrath and 2 Ors. (1991 (3) Crimes, 22)
Shobhit Chamar and another v. State of BiharDistinguished¶39
Shobhit Chamar and another v. State of Bihar ( A.I.R. 1998 S.C. 1693) · Who else cites this
Carlos Basilo @ Polly D'Souza v. StateRelied on¶43
Carlos Basilo @ Polly D'Souza v. State ( 1995 (2) Crimes 56)
3 provisions across 2 enactments
Shri Sailesh Shyam Parsekar
Baban @ Vishvanath S. Godge
State of Goa
N.A. BRITTO
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
