Dismissed

B. Raghavendra S/O Late B Nagappa, v. Ramachandra S/O Ashtappa

Karnataka HC13 Oct 2022CRL.A/100195/2015

Case brief

AI extract

What is this about?

In a criminal appeal under Section 378 Cr.P.C., the High Court dismissed the appeal filed by the complainant against an acquittal in a cheque dishonour case. The court held that the notice was not served at the correct address as proven by the accused, thus violating mandatory procedural requirements.

What did the court decide?

The appeal filed by the appellant is dismissed and the judgment of acquittal is confirmed.

B. Raghavendra S/O Late B Nagappa, Vs Ramachandra S/O… — Cheque Dishonour | Karnataka HC (2022)

¶1

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 13^TH DAY OF OCTOBER, 2022

¶2

BEFORE

¶3

THE HON'BLE MR JUSTICE S.RACHAIAH

¶4

CRIMINAL APPEAL NO. 100195 OF 2015

¶5

BETWEEN:

¶6

SRI. B. RAGHAVENDRA S/O LATE B. NAGAPPA AGE: 30 YEARS, OCC: ADVOCATE & BUSINESS, R/O: NERA GHP SCHOOL, HALE MALAPANAGUDI, TAL: HOSPET, DIST: BALLARI.

¶7

…APPELLANT

¶8

(BY SRI SRINAND A. PACHHAPURE, ADVOCATE)

¶9

AND:

¶10

SRI RAMACHANDRA S/O ASHTAPPA AGE: 43 YEARS, OCC: BUSINESS, R/O: 4^TH WARD, BEHIND MOSQUE, NEAR RAILWAY STATION, HOSPETE, TAL: HOSPETE, DIST: BALLARI.

¶11

…RESPONDENT

¶12

(BY SRI CHETAN T. LIMBIKAI, ADVOCATE FOR SRI DAYANAND M. BANDI, ADVOCATE)

¶13

Digitally signed by VIJAYALAXMI M BHAT Location: HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD.

¶14

THIS CRIMINAL APPEAL IS FILED U/S 378 (4) OF CR.P.C., PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND ORDER OF ACQUITTAL DATED 02.07.2015 PASSED BY THE PRL. CIVIL JUDGE & JMFC, HOSPETE IN C.C.NO.1891/2010 AND CONVICT THE RESPONDENT FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENT ACT, BY ALLOWING THIS APPEAL.

¶15

THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 11.10.2022, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

¶16

¶17

JUDGMENT

¶18

This appeal is filed by the complainant being aggrieved by the judgment and the order of acquittal dated 2^nd July 2015 in C.C.No. 1891/2010 passed by the learned Principal Civil Judge and JMFC., Hospet.

¶19

The appellant is the complainant and the respondent is the accused in the Trial A Court. For the purpose of convenience, the rank of the parties in the Trial ACourt henceforth will be considered according to their rankings.

¶20

Briefly stated facts of the case are that, the

¶21

complainant was doing a business and he knew the accused since three years. In lieu of said acquaintance, the complainant has lent a sum of Rs.2,50,000/- on 16.06.2009 to the accused for his business purpose and the accused had assured the complainant that he would repay it earlier. When the complainant demanded to repay the amount, the accused has issued a cheque dated 29.06.2010 and asked the complainant to present the same to the bank for realization. On presentation of the said cheque, the complainant got an endorsement as

¶22

¶23

‘insufficient funds’. After receiving such endorsement, the complainant got issued legal notice on 08.07.2010. The RPAD cover returned with shara as addressee not claimed. Hence, the complainant filed a complaint before the ACourt seeking action against the accused.

¶24

The Trial ACourt after appreciating the oral and documentary evidence on record concluded that the complainant has failed to comply the mandatory provision of Section 138(b) of the Negotiable Instruments Act (for short, the ‘N.I. Act’), and acquitted the accused.

¶25

Being aggrieved by the judgment and order of acquittal passed by the Trial ACourt, the complainant preferred this appeal.

¶26

Heard Sri Srinand A. Pachhapure, learned counsel for the appellant and Sri Chetan T. Limbikai, learned counsel appearing on behalf of Sri Dayanand M. Bandi, learned counsel for the respondent.

¶27

¶28

Submission of Sri Srinand A. Pachhapure, learned counsel for the appellant

¶29

It is submitted that the Trial ACourt has committed a

¶30

grave error in considering the endorsement issued by the Postal Department thereby caused injustice to the complainant. Therefore the judgment of the Trial ACourt is required to be set aside.

¶31

It is further submitted by the learned counsel for the appellant that, the mandatory requirement of Section 138(b) of the N.I. Act, is fulfilled by the complainant. However, the same has not been considered by the Trial ACourt. It is the contention of the learned counsel for the appellant that, the issuance of the cheque and the signature on the cheque has been admitted by the accused. Therefore, the presumption should have been raised in favour of the complainant. Once the presumption is raised, it is presumed that the cheque had been issued for the legally enforceable debt or liability. Of course, such presumption is a rebuttable presumption, the accused has to rebut the said presumption by leading cogent evidence. In this case the trial Court failed to raise the presumption appropriately.

¶32

¶33

It is further contention of the learned counsel for the complainant that, the Trial ACourt failed to consider Ex.P-6 which is RPAD cover which contained the address of the accused. The Trial Court while appreciating the evidence on record opined that, the notice has not been sent to the correct address of the accused. Hence, the proviso (b) of Section 138 of N.I. Act has not been complied by the complainant. It is further submitted that the Trial Court failed to consider Section 27 of the General Clause Act. As per the said provision it is presumed once the notice is issued to the correct address of the drawer/accused if it is not claimed by the drawer, even then, it is presumed that the notice is served in accordance with law. These principles guided us how to deal with such circumstances. However, the trial Court not appreciated this analogy properly.

¶34

The learned counsel in support of his submission made above, has relied on the following judgments of the Hon’ble Supreme Court:

¶35

“1. C. C. Alavi Haji v. Palapetty Muhammed and Anr¹ 2. K. Bhaskaran v. Sankaran Vaidhyan Balan and another² ”

¶36

1 AIR 2007 SC(SUPP) 1705

¶37

2 1999 CRL.L.J 4606

¶38

¶39

Submission of Sri Chetan T. Limbikai, learned counsel appearing on behalf of Sri Dayanand M. Bandi, learned counsel for the respondent

¶40

Justifying the judgment of acquittal it is submitted that, the complainant has not followed the procedure stipulated under proviso (b) of Section 138 of N.I. Act. The said provision makes it clear that before filing the complaint, the complainant must comply the mandatory requirement stipulated under proviso (b) of Section 138 of the N.I Act. The Trial Court rightly considered the facts and law in the proper manner and dismissed the complaint. Therefore, interference with the said findings is not warranted.

¶41

It is further submitted by the learned counsel for the respondent–accused that, the complainant has failed to prove that notice was issued to the correct address of the accused. Therefore, the judgment and order of acquittal is proper and interference by this Court is not required. As such, the learned counsel for the accused prays to dismiss the appeal.

¶42

¶43

After having heard both the learned counsel for the

¶44

respective parties and after having gone through the documents produced, the points which arise for my consideration are:

¶45

1) Whether the judgment and order of acquittal passed by the Trial Court is justified?

¶46

2) Whether the appellant has made out grounds to interfere in the judgment and order of acquittal passed by the Trial Court?

¶47

Analysis

¶48

This ACourt being the first appellate A Court in order to re-appreciate the entire evidence and documents on record, it is necessary to have a re-look on the evidence of witnesses. Before adverting to the facts of the case, it is relevant to refer the provisions under Section 138 (b) of the N.I. Act which reads thus:

¶49

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

¶50

¶51

information by him from the bank regarding the return of the cheque as unpaid; and

¶52

The proviso (b) apprehended to Section 138 of N.I.

¶53

Act, makes it clear that issuance of the notice to the drawer of the cheque is mandatory. Such mandatory provision if it is not followed, the subsequent proceeding shall be vitiated.

¶54

It is relevant to refer the legal provision before adverting to the other facts of the case. In the present case, though the complainant has stated that he has issued the notice regarding dishonor of cheque, the same has not been served to the accused to his correct address. Now, the question is whether such non-service of notice would prejudice to the complainant? Now it is relevant to refer the judgment of the Hon’ble Supreme Court in the case of C.C. Alavi Haji Vs. Palapatty Muhammed and another³ . Para 13, 14 and 15 read thus:

¶55

13. According to Section 114 of the Act, read with illustration (f) thereunder, when it appears to the Court that the common course of business renders it probable tha a thing would happen, the Court may draw

¶56

3 AIR 2007 SC (Suppl.) 1705

¶57

¶58

presumption that the things would have happened, unless there are circumstances in a particular case to show that the common course of business was not followed. Thus, Section 114 enables the Court to presume the existence of any fact which itthinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. Consequently, the court can presume that the common course of business has been followed in particular cases when applied to the communications sent by post, Section 114 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. But the presumption that is raised under Section 27 of the G.C. Act is a far stronger presumption. Further, while Section 114 of Evidence Act refers to a general presumption, Section 27 refers to a specific presumption. F or the sake of ready reference, Section 27 of G.C. Act is extracted below:

¶59

“27. Meaning of service by post.-Where

¶60

any Central Act or Regulation 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

¶61

¶62

intention appears, the service shall be deemed to be effected by properly addressing, prepaying 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.”

¶63

14. Section 27 given 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 v. Natthu Singh: State of M.P. v. Hiralal and Ors . and V. P.S ubbarama

¶64

¶65

Naidu and Anr, 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 as evaded by the accused or that the accused had a role to play in the return of the notice unserved.

¶66

3.AIR 1992 SC 1604

¶67

4.(1996) 7 SCC 523

¶68

5. (2004) 8 SCC 774

¶69

15. Insofar as the question of disclosure of necessary particulars with regard to the issue of notice in terms of proviso (b) of Section 138 of the Act, in order to enable the Court to draw presumption or inference either under Section 27 of the G.C. Act or Section 114 of the Evidence Act, is concerned, there is no material difference between the two provisions. In our opinion, therefore, when the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of Clause (b) of proviso to Section 138 of the Act stands complied with. It is needless to emphasise that the complaint must contain basic facts regarding the mode and manner of the issuance of notice to the drawer of the cheque. It is well settled that at the time of taking cognizance of the complaint under Section 138 of the Act, the Court is required to be

¶70

¶71

prima facie satisfied that a case under the said Section is made out and the aforenoted mandatory statutory procedural requirements have been complied with. It is then for the drawer to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the cover was incorrect or that the letter was never tendered or that the report of the postman was incorrect. In our opinion, this interpretation of the provision would effectuate the object and purpose for which proviso to Section 138 was enacted, namely, to avoid unnecessary hardship, to an honest drawer of a cheque and to vide him an opportunity to make amends.”

¶72

On careful reading of the principles laid down by the

¶73

Hon’ble Supreme Court regarding issuance of notice, it appears that the notice must be sent to the correct address of the drawer of the cheque. The word ‘correct address’ employed under Section 27 of the General Clause Act means and includes the correct address of the drawer where he is actually residing. Of course, there is a presumption envisaged under Section 27 of the General Clause Act regarding service of notice. But that gives rise to a presumption that the service of notice has been

¶74

¶75

effected when it is sent to the correct address by the registered post. In the present case, Ex.P-6 is the RPAD cover which contained address as “4^th ward, behind mosque, near railway station, Hospete”. However, the accused has produced some documents marked as Ex.D-1 to Ex.D-5 which makes it clear that he was residing in 5^th ward Chapalagudda Area, Hospete. Once the contrary is proved by the addressee that the service of notice has not been received by him, the burden of proving the service of notice to the correct address is on the complainant. In this case, the complainant has not made any efforts to prove that the accused was residing in the address as mentioned in Ex.P6. Non examination of postman or postal officials regarding the shara mentioned in Ex.P6 is fatal to the complainant case. Therefore, I am of the considered opinion that the address shown in Ex.P-6 is not tallying with the address shown in Ex.D-1 to Ex.D-5. Therefore, the findings given by the Trial Court with regard to the service of notice is appropriate and relevant. It does not require interference by this Court.

¶76

¶77

Conclusion:

¶78

In the light of the observation made above, the point

¶79

which arose for my consideration are answered as:

¶80

1. Point No.1 answered in the affirmative

¶81

1. Point No.2 answered in the negative

¶82

Hence, I proceed to pass the following :

¶83

ORDER

¶84

i) The appeal filed by the appellant stands dismissed.

¶85

ii) The judgment and order of acquittal dated 02.07.2015 in C.C.No.1891/2010 passed by the learned Principal Civil Judge and JMFC., Hospet is confirmed.

¶86

Sd/-

¶87

JUDGE

¶88

SSP/Naa

B. Raghavendra S/O Late B Nagappa, v. Ramachandra S/O Ashtappa

Case brief

What is this about?

What did the court decide?

B. Raghavendra S/O Late B Nagappa, v. Ramachandra S/O Ashtappa

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

The State Vs Basavaraj Tippanna Nittali

Vishwakaram Electricals Vs Mr.Mutturaj Kushappa Doddamani

Sri.P. Honnur Vali Vs Sri.Bala Raju S/O Oblesh

Basavaraj S/O Murigeppa Mulimani, Vs the State of Karnataka

Shri. Makarand S/O. Mohan Biranje Vs Smt. Seema W/O. Makarand Biranje

Mehaboob Sab S/O. Shamid Sab Vs Bargur Allabhakshisab S/O. Khasimsab