Dismissed

Smt Sikha Samuel Alias Shikha Samuel v. The State Of Jharkhand And Anr.

Jharkhand HC22 Aug 2024Cr.Rev./1420/2016

Case brief

AI extract

What is this about?

Conviction under Section 138 NI Act for a cheque returned on 'payment stopped by drawer' was challenged in revision. The court upheld the concurrent findings, holding that a notice returned with 'always absent return to sender' was validly served relying on C.C. Alavi Haji, and declined to reappreciate evidence in revisional jurisdiction.

What the court decided

AI extract

Smt Sikha Samuel Alias Shikha Samuel Vs The State Of… — Cheque Dishonour | Jharkhand HC (2024)

¶1

IN THE HIGH COURT OF JHARKHAND AT RANCHI

¶2

Cr. Revision No. 1420 of 2016

¶3

Smt. Sikha Samuel @ Shikha Samuel, wife of Shri Samson Samuel, resident of N-133/3, P.O. Plaza, P.S. Telco, Town Jamshedpur, District East Singhbhum

¶4

… … Petitioner Versus

¶5

The State of Jharkhand

¶6

Rajnish Dayal, son of Shri Shambhu Dayal, resident of Holding No. 289, Bhalubasa, P.O. and P.S. Sitaramdera, Town Jamshedpur, District East Singhbhum … … Opp. Parties

¶7

¶8

CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

¶9

For the Petitioner	--- : Mr. Prabhash Kumar, Advocate Mr. Ganesh Ram, Advocate Mr. T. Kabiraj, Advocate Mr. Manish Sharma, Advocate
For the State	: Mr. Manoj Kumar Mishra, Advocate
For the O.P. No. 2	: Mr. Arun Kumar Pandey, Advocate ---

¶10

07/22^nd August 2024

¶11

1. Heard the learned counsel for the parties.

¶12

2. This revision application has been filed against the judgment dated 28.07.2016 passed by the learned Additional Sessions Judge-IV, Jamshedpur in Criminal Appeal No. 90 of 2014 whereby the learned court has affirmed the judgment of conviction and order of sentence dated 23.04.2014 passed by the learned Judicial Magistrate, 1^st Class, Jamshedpur in C/1 Case No. 917 of 2009. The learned trial Court has convicted the petitioner for offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the ‘N.I. Act’) and sentenced to undergo simple imprisonment for a period of one year and has been further directed to pay a sum of Rs. 20,00,000/- by way of compensation in terms of Section 357(3) of Cr.P.C.

¶13

3. The learned counsel for the petitioner, while assailing the impugned judgments, has submitted that though both the learned courts have held the petitioner guilty for offence under Section 138 of the N.I. Act but they have failed

¶14

¶15

to properly considered that the notice was never served upon the petitioner, inasmuch as, the postal peon had returned the notice with a note “always absent return to sender”. He has further submitted that a plea was taken during the course of argument that the alleged cheque was for an outstanding time barred debts and liability and therefore no action under Section 138 of the N.I. Act would lie. He has also submitted that the cheque was exhibited as Exhibit-1 with objection.

¶16

4. The learned counsel has also submitted that the matter arises out of civil dispute and therefore conviction under Section 138 of the N.I. Act is not sustainable.

¶17

5. Learned counsel appearing on behalf of the opposite party No. 2 has opposed the prayer and has submitted that there are concurrent judgments holding the petitioner guilty for offence under Section 138 of the N.I. Act. In view of the judgment passed by the Hon’ble Supreme Court in the case of C.C. Alavi Haji vs. Palapetty Muhammed & Anr. reported in (2007) 6 SCC 555 in a case where the accused claimed that he had not received the notice, it was open to him to make payment within 15 days from the date of service of summons.

¶18

6. The learned counsel has also submitted that there is no dispute that the notice was sent at proper address and there is a finding of the appellate court that there was a deliberate intention not to receive the notice and defeat the provisions.

¶19

7. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that as per the complaint petition, the complainant, the accused and her father, namely, Suhas Kumar Mahapatra had long family relation and said Suhas Kumar Mahapatra was in physical possession of certain property and in connection with sell of such property, an amount of Rs. 30,00,000/- was paid by the complainant, his father and mother to the accused in a span of time. After full payment, the complainant and his father requested the accused and her father to execute proper sale deed for the said holding but the accused deferred the execution on one pretext or the other. In the first week of September 2008, the complainant came to know that the property

¶20

¶21

was sold by the American Baptist Foreign Mission Society, America directly to M/s Shashank Nidhi Construction Private Limited. Thereafter, the complainant contacted the accused and her father and enquired about the same. The accused and her father agreed to return Rs. 55,00,000/- to the complainant, his father and mother and consequently the accused in discharge of her liability and legal debt issued three account payee cheques each of Rs. 10,00,000/- bearing cheque dated 27.10.2008, 07.11.2008 and 17.11.2008 all drawn on State Bank of India in the name of father of the complainant; one cheque of Rs. 10,00,000/- in the name of mother of the complainant and two cheques of Rs. 10,00,000/- and Rs. 5,00,000/in the name of the complainant with an assurance of their encashment covering the agreed amount of Rs. 55,00,000/-. The complainant presented the cheque of Rs. 10,00,000/- dated 19.02.2009 issued by the accused drawn on State Bank of India, Telco Campus Branch, Jamshedpur with UCO Bank, Sakchi, Jamshedpur for encashment, but the said cheque got dishonoured by the said bank on 24.02.2009 with a remark “Payment stopped by the drawer”. Thereafter, the complainant sent legal notice on 03.03.2009 by registered post with acknowledgement. It was alleged by the complainant that in spite of knowledge of such demand notice, the accused intentionally did not receive the said demand notice and in connivance with the post man concerned, refused to receive the same and did not pay the cheque amount within the stipulated period, hence the complaint case was filed.

¶22

8. During the stage of trial, the complainant was the only witness who was examined. The defence neither produced any witness nor filed any documentary evidence. After closure of evidence, the accused was examined for recording her statement and the accused was in total denial.

¶23

9. Before the learned trial Court, the specific argument on behalf of the accused was that the accused had denied her signature; there was no account in her name; there was a bonafide doubt about the issuance of cheque; the demand notice was not properly served as no notice was received by the accused and consequently the pre-requisite condition for offence under Section 138 of the N.I. Act was not constituted against the accused. It was also argued that the alleged

¶24

¶25

cheque was for an outstanding time barred debts and liability and as such no action under Section 138 of the N.I. Act would lie.

¶26

10. The complainant in his evidence had supported the complaint case and stated that the original cheque was duly filled and signed by the accused in his presence which was in the handwriting and signature of the accused. The cheque was marked as Exhibit-1 with objection. The cheque return memo was marked as Exhibit-2 with objection. The cheque returned memo had the official mark. The legal demand notice dated 03.03.2009 was marked as Exhibit-3 with objection. The original postal receipt dated 05.03.2009 in the name of the accused was marked as Exhibit-3/1. The return envelope containing the original demand notice along with acknowledgement due with post remarks “always absent return to sender” was marked as Exhibit-4 and 4/1.

¶27

11. The complainant was duly cross-examined wherein the complainant stated that he paid Rs. 8,00,000/- to the accused in installments and got the money receipt of each installment. All the transactions were made to the accused and her father. The learned court considered the materials on record and recorded a finding that the cheque was issued against a legal debt and sentence accordingly. 12. So far as the appellate court is concerned, the appellate court also considered the materials on record and recorded its finding in paragraph 9 in the following manner: -

¶28

“9. In this case complainant has been examined as C.W.1. He explained in his evidence that accused and her father agreed to return Rs.55 lacs in lieu of money (Rs.30 lacs) taking during a long period of time. It was also explained by him that since 1999 onwards the complainant and his parents paid the amount to the accused and her father. It was also disclosed by him that among several cheques one cheque dated 19.02.09 for the amount of Rs. 10,00,000/- was issued by accused in favour of the complainant i.e. Exhibit-1. Further it was explained that when the exhibit-1 was produced before the Bank it got dishonoured with remarks payment stopped by drawer. The information received by him on the same day i.e. 24.02.09 after getting return memo (Exhibit-2) he sent a demand notice (Exhibit-3) to the accused through his lawyer by registered post and the said notice intentionally did not received by the accused and it was returned with remarks "always door closed". Postal receipt of demand notice is Exhibit-3/1. The case was instituted on 02.04.09. These facts and circumstances and the document proved by the complainant during his evidence and obviously necessary condition to institute a case U/s 138 of N.I. Act has been fulfilled by the complainant. During

¶29

¶30

statement U/s 313 Cr.P.C. the appellant narrated that allegations are false.

¶31

There is presumption under section 118 that every negotiable instrument was made or drawn for consideration, and that every such intrustment, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration and that every negotiable instrument bearing a date was made or drawn on such date and that the holder of a negotiable instrument is a holder in due course, provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.

¶32

During argument this fact has been raised that accused has no such account number. During statement U/s 313 Cr.P.C. the appellant narrated only one thing that allegations are false. There is presumption U/s 139 N.I. Act in favour of holder of cheque that unless the contrary is proved it shall be presumed that the holder of a cheque received the cheque in discharge of any debt or other liability. Hon'ble Andhra high Court pleased to hold in Waterbase Ltd. Vs. Karuturu Ravendra, reported 2002 (2) Crimes 453 (AP)132; 2002(1)ALD CRI 689 the court has to draw presumption that drawer of the cheque has issued it for legally enforceable debt or liability unless the contrary is proved. Hon'ble Apex Court held in Appeal (cri1015 of1999) K. Bhaskaran vs. Sankaran Vaidhyan Balan & others 1999 (4) Crimes 212 (SC) 162 burden of rebuttal is on the drawer i.e. in appellant in this case. In the case of Girishbhai Natuarbhai Patel vs. State of Gujarat, reported in 2006 Cri.L.J. 3378 (Guj) it has been held that the presumption u/s 139 is a statutory and mandatory presumption. The mandatory presumption can't be dislodged merely by bare explanation which may appear only plausible. It is a duty cast upon the accused to lead cogent and plausible evidence demolishing the presumption that the cheques were issued against existing liability or debt. However defence argued that the cheque does not relate to her account but no sufficient evidence oral or documentary adduced by the defence to establish that the account relating to cheque has nowhere been communicated with the accused. To rebut the presumption as well as in his favour appellant did not produce any evidence. Hon'ble Delhi High Court pleased to hold in Suresh Chandra Goyal Versus Amit Singhal on 14th May, 2005, in Cr.L.P. 706/14.

¶33

This Court in V.S. Yadav v. Reena, 172 (2010) DLT 561, commented on the obligation of the accused while setting up a defence to repulse the presumption created by virtue of Section 118 and 139 of the NI Act as follows:

¶34

"It must be borne in mind that the statement of accused under Section 281 Cr.P.C. or under Section 313 Cr.P.C. is not the evidence of the

¶35

¶36

accused and it cannot be read as part of evidence. The accused has an option to examine himself as a witness. Where the accused does not examine himself as a witness, his statement under Section 281 Cr.P.C. or 313 Cr.P.C. cannot be read as evidence of the accused and it has to be looked into only as an explanation of the incriminating circumstance and not as evidence. There is no presumption of law that explanation given by the accused was truthful. In the present case, the accused in his statement stated that he had given cheques as security. If the accused wanted to prove this, he was supposed to appear in the witness box and testify and get himself subjected to cross examination. His explanation that he had the cheques as security for taking loan from the complainant but no loan was given should not have been considered by the Trial Court as his evidence and this was liable to be rejected since the accused did not appear in the witness box to dispel the presumption that the cheques were issued as security. Mere suggestion to the witness that cheques were issued as security or mere explanation given in the statement of accused under Section 281 Cr.P.C., that the cheques were issued as security, does not amount to proof. Moreover, the Trial Court seemed to be obsessed with idea of proof beyond reasonable doubt forgetting that offence under Section 138 of N.I. Act was a technical offence and the complainant is only supposed to prove that the cheques issued by the respondent were dishonoured, his statement that cheques were issued against liability or debt is sufficient proof of the debt or liability and the onus shifts to the respondent/ accused to show the circumstances under which the cheques came to be issued and this could be proved by the respondent only by way of evidence and not by leading no evidence.”

¶37

So far as the contention is related with the notice unserved it is held by the Hon'ble Supreme Court in case no Appeal (cri)767 of 2007 C.C. alavihaji v. Palapetty muhammad(date of judgment -18.5.07) "Drawer who claims that he did not receive the notice, can within 15 days of receipts of summons from the court, make payment of the cheque and submit to the court that he had made payment within 15 days. A person who does not pay within 15 days of receipt of the summons along with copy of the complaint, cannot contend that there was no proper service of notice by ignoring statutory presumption to the contrary U/s. Sec 27 of the G.C.Act and 114 of the Evidence Act (Para no. 17)..

¶38

There is no dispute that the notice was sent on the same address where accused was residing. It is settled principal that if the correctness of the address mentioned in the cause, title of the notice as well as on the acknowledgement was not disputed. It has been held that a presumption arose that the impugned notice did reach to an addressee and had been delivered to the addressee or any authorized person on his behalf and the appellant being conscious about anticipated litigation and has deliberate intention of defeating

¶39

¶40

provisions and thus cannot get benefit of his own fault or mischievous act.

¶41

Reasoning regarding cheque bounce mentioned in Exhibit- is payment stopped by the drawer. Hon'ble apex Court pleased to hold in criminal appeal no 1020 of 2010 Rangappa v. Sri. Mohan, 2010(11) SCC 441, AIR, that "stop payment" instruction sent by the accused to bank in respect of a cheque. Section 138 is attracted.”

¶42

13. It is not in dispute that the cheque had bounced for the sole reason “payment stopped by the drawer” and further the notice was sent which returned with a note “always absent return to sender”. The appellate court has recorded a finding that there was no dispute that the notice was sent on the same address where the accused was residing and further recorded that the appellant being conscious about anticipated litigation had deliberate intention of defeating provisions and thus cannot get benefit of her own fault or mischievous act. The appellate court also considered the judgment passed by the Hon’ble Supreme Court reported in (2007) 6 SCC 555 (supra) wherein it has been held in paragraph 14 and 17 as follows: -

¶43

“ 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 ; State of M.P. Vs. Hiralal and V.Raja Kumari Vs. P.Subbarama Naidu) 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.

¶44

17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of criminal law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not

¶45

¶46

pay within 15 days of receipt of the summons from the court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the GC Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskarans case if the “giving of notice” in the context of Clause (b) of the proviso was the same as the “receipt of notice” a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act.”

¶47

14. In view of the specific case of the complainant that the accused intentionally did not receive the demand notice and in view of the specific finding recorded by the appellate court with regard to conduct of the accused, this Court is of the considered view that returned notice with note of postal peon “always absent return to sender” has been rightly accepted to have been validly served upon the petitioner in view of law stated in paragraph 14 of the reported in (2007) 6 SCC 555 (supra) as quoted above . Moreover, in terms of paragraph 17 of the judgment passed by the Hon’ble Supreme Court reported in (2007) 6 SCC 555 (supra) , the petitioner could have offered payment upon receipt of the summons but no such step was taken.

¶48

15. This Court is of the considered view that there is no scope for reappreciation of materials on record in revisional jurisdiction and coming to a different finding. Upon going through the impugned judgments, this Court finds that the impugned judgments are well discussed judgments and there is no perversity, illegality or material irregularity in the impugned judgments calling for any interference in revisional jurisdiction.

¶49

16. Accordingly, this petition is dismissed.

¶50

17. Pending I.A., if any, is closed.

¶51

18. Let a copy of this order be communicated to the court concerned through ‘e-mail/FAX’.

¶52

(Anubha Rawat Choudhary, J.)

¶53

Mukul

¶54

Smt Sikha Samuel Alias Shikha Samuel v. The State Of Jharkhand And Anr.

Case brief

What is this about?

What the court decided

Smt Sikha Samuel Alias Shikha Samuel v. The State Of Jharkhand And Anr.

Case brief

What is this about?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sitaram Soni And Ors. Vs The State Of Jharkhand And Ors.

Naresh Mahato Alias Naresh Kumar Mahato Vs The State Of Jharkhand

Shankar Rajak Vs the State of Jharkhand

Miss Rimjhim Kumari Vs the State of Jharkhand

Jagdish Prajapati Vs The State Of Jharkhand And Anr.

Sanjeev Kumar Mishra Vs The State Of Jharkhand And Anr.