Dismissed

Pitla Satyanarayana, Secbad v. P.P., Hyd and Ano

Telangana HC21 Nov 2022CRLRC/2092/2016

Case brief

AI extract

What is this about?

A cheque-dishonour conviction was upheld after the lost-cheque defence failed to rebut statutory presumptions. The court accepted the unsigned demand notice and bank-supported return memo. It dismissed the revision but replaced substantive imprisonment with a fine payable as compensation, retaining imprisonment in default.

What did the court decide?

Substantive imprisonment replaced by a fine payable as compensation within three months, with one year's rigorous imprisonment in default.

Pitla Satyanarayana, Secbad Vs P.P., Hyd and Ano — Cheque Dishonour | Telangana HC (2022)

I t ,.

IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

¶5

MONDAY,THE TWENTY FIRST DAY OF NOVEMBER TWO THOUSAND AND TWENTY TWO

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PRESENT

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THE HONOURABLE Dr. JUSTICE G.RADHA RAN|

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CRIMINAL REVISION CASE NO: 2092OF 2016

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Criminal Revision case under Section 397&401 against the Judgment made in Criminal appeal No.494 ot 2012 dated 12.05.2016 on the file of the Court of the the Addl. Metropolitan Sessions Judge for trial of communal offence cases cum Vll Additional Metropolitan Sessions Judge, Hyderabad. prefeered against the Order made in C.C.No.91/2011 dated:16-04-2O12 on the file of the Court of the Xll Special Magistrate at Secunderabad.

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Between:

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PITLA SATYANARAYANA, S/o Kesavalu, age 60 years, Occ:Retd. Teacher, Fi./o Plot No.69, Teachers Colony, Tirumalgerry, Secunderabad

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... Petitioner/Accused

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AND

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The State of Telangana Rep. by its Public Prosecutor, High Court at Hyderabad for the state of Telangana and for the State ofAndhra pradesh

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P.Jagga Rao, S/o Rama Rao, age 55 years, Occ:Business, R/o 8-7-86/3, HAL Co!o1y, Qld Bowenpally, Secunderabad (Died on 1S-O}-2O14). as per Oiders in Crl. M. P. No. 1 3231 2O1 4, dated 29- 1 2-20 1 4, S mt.^p. Satyavathi, W7o tate P.Jagga Rao, aged 59 years, Occ:Private Employee, R/o 8-7-86/3, Old Bowenpally, HAL Colony, Hyderabad is shown ai appellant

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...RespondenUComplainant

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Counsel for the Petitioner: SRl. B. ARJUN RAO representing M/s. RAJA SRIPATHI RAO

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Counsel for the Respondent No.1: PUBLIC PROSECUTOR FOR TS

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Counsel forthe Respondent No.2: SRI K. SAI BABU

¶20

The Court made the following: ORDER

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]'Hli lt()N'IlL[, Dr. JUSTICE G. RADHA Fl,\Nl

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CRIv INAL REVISION CASE No.2092 OI'201(;

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ORDER:

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'this Crir Linai Revision Case is filed by the pet ir.i one r-ac cused aggrievr:ci iry tL : urlgment dated 12.05.2016 passed rn,lrl.r. No.494 of 2012 br, tne Adilitional Metropolitan Sessions^jud3t: for Trial of Communai OiT nr:e Cases cum VII Additional Metropclitar Sessions Judge, I{r dera^,a l, in reversing the judgment of acqr ittal and convicl.ing hirn {i:r the offence under Section 138 ol- tte Nlegotiable Instrtrment, Ac ( lbl short 'NI Act') and sentencing hirrr t<, rigorous imprisonmcnt f, r r period of one year and fine of Rs.3,25,000/- and in default of t)ayr.r )'I r>fl fine to undergo simple imorisorlnent for three months and or t o1' the said fine amount, dilectinl5 hinr to pay Rs.3,23,000i- a: conrpensation to the respondent - corrplainant under Section 35r Cr. .(

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l'he oarli s are hereinafter referred as per their a-'r.Ly trefore the trial court"

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3" The ;asc t, tlte complainant was that the accus:cl approached him fbr a lrand oirn o1'Rs.3,25,000i- for.his daughter'r lnar:iage and

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1 Dt(;NU Crl RC^No.)0922016

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the complainant paid the same to the accused by way of cash. The accused executed promissory note and receipt for the said amount and promised to clear the loan amount within one year. After repeated demands by the complainant, the accused issued a cheque bearing No.583903 dated 13.08.2007 for Rs.3,25,000/- in favour of the complainant. The said cheque was deposited by the complainant and the same was retumed with memo dated 31.08.2007, he issued a notice dated 03.09.2007 to the accused demanding payment of cheque arnount within fifteen (15) days. The accused received the notice on 07.09.2007 and also gave a reply, but failed to pay the cheque amount, as such, filed complaint under Section 138 of the NI Act

¶29

The said case was tried by the XII Special Magistrate, Secunderabad vide CC No.9l of 201 1 (old CC No.941 of 20¹ 0). The complainant examined himself as PW.1 and got marked Exs.Pl to P5. The accused was examined as DW.l and Exs.Dl to D3 were marked on his behalf. On considering the oral and documentary evidence on record, the trial court observed that Ex.P2 cheqlre pertained to ICICI Bank, Kharkhana Branch, it was presented by PW.l in his SBI, Mudfort Branch account for clearance and the same was retumed with

¶30

I)t GRR-J (:)l lL Na )t)r2 2016

¶31

¶32

memo and if tl al u,as the case, the cheque^{had to be r,ent to ICICI} Bank and rhe s i<; bank had to issue^{memo retunringtlle ch:quewith} reason. bui thel ;^,vas no signature of^{issuing authorityand no reason} was rnentioned l-he cheque return memo had to be^{il;t;rred by ICICI} Bank whereas t was retumed by SBI Bank to^{ICICIIBank. PW.l} admitted in his evidence that Ex.P3 did not bear the sip,natrre^{of the} issuing authori y and he did not file any proof^{of' prese'ntingthe} cheque rn lrran, h. In view of thc said evidence, PW^{1 c,ugi-rtto have} taken steps to :;, amine the bank officials to^{provelr,sserltationof} cheque an(l aut e rticate its retum for specific^{reason, irs such, opined} that there^ivas rc, legally recoverable debt^{from the a,:cused to PWl} and Ex.P2 cher uo^\vas not issued by the accused in^{dis,:hargeof the} said riebt and d ;niissed the cornplaint acquitting^{the act:tsed}

¶33

Aggrievr I oy the said acquittal of the accused. tht:^complainant preferred an ppeal. The appeal was heard by ll,: r\dditional Metropolitan S :s;ions Judge for^Trial of^{ComrlrunaL tl)f'ferlceCases} cum VII \ddi ional Metropolitan^Sessions Juoge.^{Fly,ler:ibad vide} Criminal Appe I \o.494 of 2012. During pendency of^.Jre appeal, the complainant fil :cl a petition undel Section 391 Cr.P.O tbr adducing

¶34

¶35

4 Dt-GRRJ Ctt RC No-2092²⁰¹⁶

¶36

additional evidence to examine the Assistant Manager of^{SBI on his} behalf. The said petition was allowed. Aggrieved by allowing the said petition, the accused preferred criminal revision case before^this Court and the same was confirmed by this Court^videCrl.R.C. No.2292 of 2013. The Assistant Manager of SBI^{was examinedas} PW.2. The lower appellate court on considering^{the said evidenceas} well as re-appreciating the evidence which was already^{on record,} found the accused guilty for the offence^{under Section138 ofNI Act} and sentenced him as above.

¶37

Aggrieved by the said conviction and^{sentence,the accused} preferred this revision contending that the appellate^{court erred in} coming to the conclusion that the^{signatureson Exs'Pland P2 were} that of the accused. The observation of the^{SessionsJudge was} without any supporting evidence, DW.l denied^{in his evidence that} the cheque and promissory note^{were givento the complainant.The} appellate court should have confirmed^{the judgmentof acquittal by} dismissing the appeal in the absence of^{expert opinion with regard to} the signatures on Exs.Pl andPZ.^{The appellate court failed to consider} the plea of the accused^{that he never borrowed any amount from the}

¶38

DTCRR I 5 Cn RC )492 2t)16 ^a

¶39

---G

¶40

complainalt anr l.hat he never issucd any cheque^{or plrrtnis;orynote} to the complair 1iri. The appellate court ought^{to hit'v : taken into} consideration th , ,::ontention of the accused that ht: lost^t.[tl: cl.eque and directed the ba k authorities to stop payment.^{The iu:rellate court} received additir na! evidence durinll the course of^{pto,.:ee<lings.It} ought to have onsidered that the provisions of^{the IlankersBooks} Evidence Act, 1894 (for shofi 'the Act')^{u'ereepplit:able for} adjudicatiorr cf tLe appeal. For unexplained reasons,^{the appellate} court hari not cr nsidered the provisions of the^{Act thou6lr reliedupon} the additional e irience in convicting the accused.^{The a.lipellatecou(} ought to have considered the contention of the^{acr:used that the} complainant go ir;sued two noticr:s on 03.09.2007 fiont^{ihe Advocate} office i.e. E.xs. '4 and D3. Ex.P4 did not bear the si1;nattrre of the Advocate. Ex. )3 dici not disclose issuing of ch,:que, li'hele was no reference of i sue of cheque in discharge r,f ciellt^thougirthe complainatlt cli inred to be in possession of the chequ,: by^{that date} and presented tl e cheque and return of cheque^{withmerrt,r.On receipt} of notice, the cr)used gave repty through^{Advocate informingthe} complainarLt th t the cheque in question^{waslost by i,im frorn his} house along u tL. another cheque No.583904^{in the lirst week of}

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6 DT GRRJ C.I.RC No 2092 2016

¶42

August 2007 and he immediately informed to his bank and filed a photostat copy of the letter addressed to the bank officials on 08.08.2007 containing the seal and signature of the officials of the bank and prayed to set aside the impugnedjudgment.

¶43

Heard Sri B.Arjun Rao, leamed counsel for the petitioner - accused and Sri K. Sai Babu, leamed counsel for the 2nd respondent - complainant.

¶44

The leamed counsel for the petitioner-accused argued on the same lines as raised in the grounds of revision.

¶45

Leamed counsel for the respondent-complainant submitted that the petitioner-accused had to infact prefer an appeal within (30) days from the date of the judgment of the lower appellate court, but preferred revision after (90) days. When there was a provision for appeal, filing of revision itself was not proper. He further supported the^judgment of the lower appellate court and contended that the same was in accordance with law and there was no need to interfere with the same and relied upon various judgments of the Hon'ble Apex Court and High Courts

¶46

¶47

DT.GRR.J ( r ltt: N) )0912016

¶48

¶49

Now the o nt for consideration is:

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Ilrhether 't:^judgment of the lower appeilaie <'oltt t in^revcrsing the judgmrnt o :he tnal court and convicting the a,::,tseC.for the offence uruler S, ction I 38 of the NI Act and sentettcing^L,tnt as such, is in accordartce v it!r law or needs any interference by thi;; r')ourt?

¶51

This Cor t had no authority to appreciate th 3 evrcience in revision in the ranner as the trial court and the lppellat,: c()urt wei:e required tr' do zrnd could exercise its power of a:J:reciation of svidsnqs srrly i r:xceptional cases which would requi n: interlerence for correction r1 manifest illegality or for preventi,.rn of gross miscarriagc of u litlce. The scope of interference ln i. r€ vlslon ts extremely ilarrc v. This Court in revision would orly corsider the material to satis y itself about the legality and ploprie I'r of findings, sentence or ord r and would not dwell at length upol. lle lacts and evidence o1'the ar;e. However, as the revision per-itione raccused was contending that tlLough he denied borrowing any amlrnt from the complainant an( that he never issued the promissory ncl: o- cheque, the appellate c lrrt erred in coming to the conclu:irn that the signatures on E. s Pl and P2 were that of him ano that Ilre aciditionai

¶52

Dt.CRRJ 8 Cr) RC No.2092 20t6

¶53

evidence was received during the hearing of the appeal, it^is considered necessary to go through the evidence.

¶54

The case of the complainant was that the accused^had approached him and requested for an amount ofRs.3,25,000/-^{for his} daughter's marriage and executed a^{promissory note and} on^his demand, issued a cheque bearing No.583903 dated^{13.08.2007 for} Rs.3,25,000/-. The said cheque,^{when depositedfor realization,was} retumed on the ground that^{'paymentstopped} by^{the drawer'vide} banker's memo dated 31.08.2007. He^{got issued a legalnotice. The} said notice was received by the accused,^{but he gavea replywith false} allegations.

¶55

The defence taken by the accused^{was that he lost the said} cheque along with another cheque and^{informedthe bank officials} about the said fact and requested them to^{stop paymentand he} informed the same to the complainant in^{his reply legal notice, he had} not executed any promissory note in favour^{of the complainant. The} promissory note was marked as Ex.Pl and the^{chequebearing} No.583903 dated 13.08.2007 for Rs.3,25,000/-^{was markedas Ex.P2.}

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¶57

9 til_Rc^jb 2092 I' GPJ\ 2016J

¶58

The peti icner-accused was examined as I)Wl :rnJ h: admitted in his cross e> rrnination that Ex.P2 cheque belongec to his account and it bore hi r;ignature" Ex.Pl promissory note arr,:i roceipt also contained his s gnatures. He also admitted that he had rrot lodged any complaint to tt : police about the cheque being lost. Fk: alsr admitted in his cross e :amination that the postal acknowledi3rrren ! bore his daughter's si6 re.ture and he did not state anythirLg abour the promissorv no1 : in his reply notice under Ex.DL

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15" From th, cross-examination, it would disclose that h': admitted his signatures r n the promissory note as well as on the ,theque" When the signature o the cheque was admitted by the eccusr:,J, presumption shall be drarvr that the cheque was issued in d ischar 11,:r ot' a legally enforceable del t ,rr liability as per Section 139 of NI A:t

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Section 39 of M Act provides for presumption in favour of,the

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holder. It says hirt:

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"139" X"esumption in favour of holder.-- tt. slall be presumq , rnless the contrary is proved, that the hold::r ol a chcque r ce,ived the cheque of the nature referred ro in r;ect on 138 for r re discharge, in whole or in part, of any clebt cr otler liability.'

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a:: ,.

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Dt.GRRJ 10 Crl.RC No.2092²⁰¹⁶

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1. When once the^{signatureon the promissory note was admitted,}

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the presumption under^{SectionI 18 (a) of NI Act also wouldarise that} it is supported by^{consideration.As per Section 118 of the NI Act,} which deals with^{presumptionsas to negotiable instruments: until the}

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contrary is proved,^{the followingpresumptions shallbe made:-}

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(a) of consideration -that every negotiable instrument^was -ud"^{o. drawn for consideration, and that everysuch} instrument, when^{it hasbeen accepted, indorsed, negotiated or} transferred, was^{accepted, indorsed,negotiated or transferredfor} consideration;

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(b) as to date -that every negotiable^{instrument bearing a date} was made or drawn^{on such date;}

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Both these^{presumptions are rebuttable presumptions'The}

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accused can^{prove the non-existenceof consideration or that there was}

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nolegallyenforceabledebtorliabititybyraisingaprobabledefence.

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Learned counsel^{for the petitioner-accusedrelied upon the} judgment of the Hon'ble Apex Court^{in M'S' Narayana Menon@} Mani v. State of^{Keralaand anotherlon the aspect that the onus of} proof on accused^{was not} 5^{heavy as that of the prosecution'For} rebutting^{presumptionwhat was neededwas to raise a probable} defence.Evenforthesaidpurpose,theevidenceadducedonbehalfof

'^{(2006) 6 scc a9}

DrGRR,I .tl.Rc ib 2492 2016

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the complainar t ,:ould be relied upon. The standard ol p,roof evidently was preponde^'ance of probabilities. The accused vrould not be required to pr v,: the prosecution case in its entirety. I nte;'ference of preponderance c,f probabilities could be drawn not r:,n11 from the material on re :ord but also by reference to the circrrrrrstances upon which the ac u sed relied" It could be compared u ith that of a defendant in c riiproceedings"

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2A" The lea ned counsel for the respondent-comlrizrinant, on the other hand, rel eri upon the^judgment of the Hign Court of A.P. in M. Vidyavathi v. Chandraiah @ Chandra Babu and zLn,other2, on the aspect that the u,ord "unless contrary is proved" in Sect..on 139 of the NI Act r,''ould nrean that there must be a pleading a:r i evidence to substantiate t[ : same and mere explanation <sup>ras nor- sul hcient for discharging th, burden placed on record.

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A three^'udge Bench of the Hon'ble Apex Court in Rangappa v. Sri Mohan , while examining the presumption unir:r Section 139 of the Ntr .Act I :id that:

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'z^{zoto (t)alt(cri347 (s.8.)}

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'^{AIR 20lo sc l89t}

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Dr-aRRJ Ctl RC No.2OYZ^20t6

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"In^{theevent,the accusedis ableto raise a probable defence} which creates^{doubts abouttheexistenceof a tegally enforccable} debt or tiabitity,^{the prosecution can fai['}

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Section 139 of the^{Act is an exampleof a reverse onus clause} that has been^{includedin furtheranceof the legislative objective} of improving the^{credibitity ofnegotiable.instruments'} While Section tl8 of^{the Act specifies a strong criminalremedy} in relation to the^{dishonour ofcheques, the rebuttable} presumption under Section^{139 is a device to preventundue} i"tuy it the course^{of litigation.However,. it. must be} remembered that^{the offence madepunishableby Section} 138 can be befter^{described as a regulatoryoffence since the} bouncing of a^{cheque is targelyin the natureof a} -civil^wrong whose iirpact is^{usually conltnedto the private partiesinvolved} in commerciat^{transaitions. In such a scenario, the test of} proportionality should^{guide the construction and interpretation} of i"rr"rr" o.trs "lau."i and the accused/defendant^cannotbe expected to discharge^{an unduly highstandardor proof'"}

¶87

The defence^{taken by the accused in the reply noticegiven by} him marked under^{Ex'D 1 was that the cheque in questionwas} misplaced along^{with another cheque flrom the houseof theaccused} and the same came^{to the noticeof the accused in the first week of} August, 2007 andthe^{same was immediately intimatedby him to his} bank and the complainant^{got hold of the cheque by unlawfulmeans'} He further contended^{that the complainant was totallya strangerto the} accused and did^{not have any acquaintance and he created a false} story. But,^{however,he failed to exptain as to how the promissory} note marked^{under Ex.Pland the blank signed cheque marked under} Ex.P2 came^{into possessio.n of the complainant. He failedto lodge}

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l3 ITGMJ

¶89

-r--

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any police rep( d about the loss ofcheques as contendt:,1 by him in his reply notice r : failed to initiate any criminal ar:tio i against the complainant er :r r after receipt of notice from hinr dcm,rr,ding payment under the said rheque. He failed to give any explanitlic,n r,,,ith regard to the proiniss' ry note. He filed Ex.D2 - photostai. co:y oI the letter addressed by I in Io the Manager of ICICI Bank de.tr:d^(18.08.2007 stating that he vrLs a Govemment Teacher and due ro ]ti:; ertployment he had to lesid rLway from home and was in the habit,r"kccping ie.,v srgneci blank heques in his residence for facilitatrrg iamily members^io !n el unforeseen expenditure in his abse rr,:,:. I Ie noticed that two bJank ip,ned cheques bearing Nos.D58390l arr,i 581904 were missing and h r could not trace them anywhere in it Ls house and reguested i.o st( D payment of those cheques and not Lc) (:lcar lhem

¶91

23 . The lear led counsel for the complainani conl er rderj that the photostat copy nrarked under Ex.P2 could not be reli:d .rpon, and relied on the jr drgment of the High Court of A.I). irr liama Venkata Subba Rao, lllanaging Partner of Babu arrrl Oompany, Machilipatnar and another v. Pillarisetti Venkarl:rr Venugoala

¶92

Dt.GRRJ

¶93

¶94

Jagannadha Raoa on the^{aspect that Xerox copies of documents were} not admissible in evidence.^{He also relied upon the judgment of the} Hon'ble Apex Court in^{RamSuresh Singhv. Prabhat Singh} @ Chhotu Singh and^{anothers on the aspect that photostat copyin the} absence of original was^{not admissiblein evidence'}

¶95

The learned counsel for^{the petitioner, on the other hand,} contended that this^{was only a summaryproceeding and photostat} copies also could be^{marked. But, even in summary proceedings,the} inadmissible evidence^{cannot be permittedto be adduced.As such, no} reliance can be^{placed upon Ex.D2.}

¶96

The leamed counsel^{for the petitioner-accusedfiled Ex'D3-legal} notice issued by the^{counselfor the complainant to show that he} received Ex.P4 as well as^{Ex.D3,which were issued on thesame date} i.e. 03.09.2007 and in Ex.P4^{therewas no signatureof the counseland} without the signature of the counsel,^{theffitcouldnot be} "ontid""d as a legal notice and that Ex.D3^{was not signed by the counsel, the} same would not have any reference^{to the issuance of the cheque or}

¶97

¶98

o 1995 (2) ALT 65 t (s.B.) '^{(2009) 6 scc681}

I r :

bouncing o1' , oS such, they could not be consicc:ed as proper issuance c,f lep L[ notice.

¶103

26" The cot lsel for the complainant appeared to lr,r re ssucd two notices, one ur dcr Ex.P4 for cheque bouncing clse untl,.:r Section 138 of NI Acr anci another under Ex.D3 calling upon the a:cused to pay the loan .,,mcL rt or else to initiate civil proceedings zL1.1air:st him for recovery of thr anount basing on the promissory note.

¶104

27 " The lear red counsel for the respondent-cornp liri r€Lnt r elied upon the :u<igment r i lhe High Court of Kamataka in Sukurnnra Pillai S/o.

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Krishna Pilla r'. Ilaburaj S/o. Vasudevan6 on the asl:ect whether a lawver nctice isued without signature of the la\lyer c.:rl b( treated as a defective nol ct:" The Court held that:

¶106

"[] l'hr 'e is no form of notice is prescribed under CIat s;e (b) of thc plor sl to Section 138 of the Negotiable lnstrunrorrts ,,\ct. The pro is,r only says that "the payee or the hokler in c u(i corlrse of the r re,luc! as the case may be, makes a demar ci Ibr the pavmen of the said amount of money by gi'ring a n:rtict: in wrrttng, o the drawer of the cheque". There is nothinp irr clause (b) of tt : proviso to Section I 38 of thc Negotiable Instmmonts Act to r row that, it should be a lawyer noticr: and rhi: notice shriuld^I e a :;igned notice. The literal meaning of irr'.i nat on: an].lounc 'n:ent: information: warning: a writing, placiu<1, bc,ard etc corl' :1,ing an intimation or warning." As per ttc Oxlbrd Advancr I eamers Dictionary. New 9th edition, tl.re 'n, rticr' is intuprel d as "paying attention, giving information. annc,unc ng, wanring elc.." P.Ramanatha Aiyar's Concise [-arv I)ir:tiot ary

¶107

u 2020 Lawsu t (Ker I tl3

¶108

¶109

. Dt.cRRJ C.t RC No 2092 20t6

¶110

dehnes'notice in writing' like this:^"The word 'notice' denotes merely an intimation to the^party conccmcd of a particular fact. It cannot be limited to a letter. Notice may take several forms. It must, to be sufficient, be in writing and must intimate^quite clearly that the award has been made and signed."

¶111

[8]^{From theaboveliteralmeaningof 'notice', it is clearthat,} nowhere it is stated that, a notice should be in a signed form. As stated above, Clause (b) of proviso to section 138 of^the Negotiable Instruments Act also not stipulates a signed^notice in writing. What is stated in the proviso is "giving a notice in writing" and not "by giving a notice in writing with signature." For this simple reason, the finding of the leamed Magistrate^that Ext.Ps notic€ issued by the complainant is defective cannot be accepted."

¶112

In the above^judgment, the High Court of Kerala had also extracted the^judgment of the Hon'ble Apex Court in Central Bank of India^v. M/s.Sexons Farms & Ors. [1993⁽³⁾ KerLT 484], wherein it^was held that:

¶113

"7 Though, no form of notice is prescribed in the above Clause(b) the requirement is that notice shall be^{given in} writing within frfteen days of receipt of information from the bank regarding retum of the cheque as unpaid and in the notice a demand for payment of the amount of the cheque had to^be made.

¶114

The object of notice is to give a chance to the^drawer of^the cheque to rectifr his omission and also to^{protecthonest drawer.} Service of notice of demand in Clause^(b) of^{the provisoto} 5.138 is a condition^precedent for fiting a complaint^{under S.138} ofthe Act."

¶115

and observed that as held by the Hon'ble Apex Court, the requirement

¶116

of giving notice to the drawer of the cheque is to enable him to avoid prosecution under Section 138 of NI Act. It also took aid of the

¶117

¶118

¶119

( tl llc \i) 2492 2016

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¶121

judgmeni in I .. Surendra Das v. State of Kerala 12019 2 KerLT

¶122

8951, whcrein t wzrs held that:

¶123

"l: Ls rl ll settled principle of law that the notice has t: be :ead as a r.,h lc. A notice must be construed not with a desir:: to find faLrlt in t^rvhrch would render it defective. It must not b,. read in a hyrer :e,:hnical manner. It must be construed strictlv but in a se rrsiblt rnan;ler"

¶124

and obser ved^. lat:

¶125

" lri the ilht of the above observations of thrs Coun and the Arrex f rurt, I think, the omission on the part of the lerwy€r to prit hrs 'g^{ralurein the noticeissuedunder Clause(b)cl proviso} to Sect rr I 18 of the Negotiable Instruments Act. ca nno . be trr atcd r ; riefective notice."

¶126

28" Thr.' ler nred counsel for the complairanr re lied upon the judgmenl of tl : Bombay High Court (Goa Bench) in lribdrrl Rehman

¶127

M. Mulgand Moham-mad Hashan Mulgand rrnd anotherT

¶128

whercin hy pli;ing rcliance on another judgment of tto Bo,nbay High

¶129

Court rn l'rasl ant Prabhakarrao Gite v. S.K. Sark:rr [2002 (2) Mh

¶130

LJ 1251,^,vher in it was held that:

¶131

"srrh-cli rs,: (b) of the proviso to Section 138 of the I'ct only rerluircs rctice to be given in writing by the pa1'ee to the drawer in whicl there should be a demand made by the paye: :urd that this cla sc does not prescribe any form or lormat {irr such norice. r rhe absence thereol what has been conten.pJatec by th is clar ;e is the communication in writing by the paye,: to the drarver sI. ing the drawer to pay the amount involr rri in the ch,lque^' 'h ch is dishonoured."

¶132

'^{2oo6crl.L..tI t-s9}

¶133

Dr-G&R) l8 Crl.RL No.209l²⁰¹⁶

¶134

Thus, the^{omission on the paft of the counsel for the} complainant to^{put his signaturein the notice cannot be consideredas} a defective notice,^{as it was not the technicalities that should be taken} into account but^{the objectof noticeand there is no specific stipulation} ofclause^(b) ofSection^{138 ofNI Act that it shouldbe a signed notice} in writing.

¶135

30.AsEx.D3noticeisissuedforinitiatingcivilproceedingsi[the accused failed to^{pay the amountdue, the absence of the detailsof the} cheque and the^{bouncingof it is not necessary to be mentioned in it} andEx.D3isnotthebasisforinitiatingactionagainsttheaccused under Section^{138of NI Act.}

¶136

The accused^{failed to probabilizehis defence to meet the} standard of preponderance^{of probability.The Hon'ble Apex Courtin}

¶137

Kalamani Tex and^{anotherv. P. BalasubramanianE,held that:}

¶138

"15. No doubt,^{and as conectlyarguedby senior counsel for the} appellants, the^{presumptionsraised underSection} tii ana Section^{139 are rebuttable in nature'As held in MS} Narayana Menon v.^{Stateof Kerala(2006) 6 SCC^391,} -wlich was ielied upon in Basalingappa^{v. Mudibasappa(2019) 5 SCC} 418] a probable defence^{needs to be raised,which must meet the} standarh of "preponderance of^{probability",and} -not^mere possibility. These principles^{were also affirmed in thecaseof} i<,lmur Eipo.tt u. Shu.-u^Carpets [(2009)^{2 SCC513] wherein}

t 1zoztl s scc zsr

1-,

it^rras I rl tel held that a bare denial o1'passing of cor L:;ilera tion would r rt aid the casc ofaccused.

¶144

I:v r il we take the arguments raised by the apte lanrs at face vai e that only a blank cheque and signed bliLnl: strrmp PaDcr-q ,,u,:re givcn to the respondent, y€t thc :;tatutory prcsuml .ion -unno, be obliterated. It is useful to cite Ilrr Slngh v. Muk ;h Kunrar [(2019) 4 SCC 197], where this ,:,rrrrt held that:

¶145

''l vcn a blank cheque leaf, voluntarily signed ar,l handed o,:r bl, the accused, which is towards some t)iryment, lv uld attract presumption under SectLon l.|)of the N g,1l2flg Instruments Act, in the absence of.an1. collent e\ d!'nce to show that the cheque wa:j not i;.ued in di :harge of a dcbt."

¶146

Thus, r )r,r taking the defence that he l()st ru1) blank signed cheques is ,ot nough to consider it as a defence to me('1. thr, standards of preponderar re of probabilities without adducing €.n,/ e./idence in proofofthe sar re.^'fhe letter issued to the Bank lo stotr,[)ayrnent is not sufficient io c, nr.;irier the same as a probable defenr,r: anrl the said letter also cam 't be taken into consideration being a ph)lostat copy"

¶147

33" PW. 1 we i {)ross-exafi1ined on the aspect that the tr.;,ulsactions for more than Rs.2 1,000/- carulot be in the shape of cash, to co111.rrun.. his evidenr:e th t he lent the amount of Rs.3,25,()00/- by.car;h. pW.l also adrnitred t a - he was an incorne tax assessoe ..c stat.d that he

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. DT.GRRJ Crl.RC No 2092 2016

¶152

had shown the lending of said^{amountin his income tax returns for the} year 2007-2008, but had not filed^{the said statement.}

¶153

The leamed counsel^{for the petitioner reliedupon the judgment} of the High Court of^{A.P. in M. Vidyavathi'scase (2 supra)on the} aspect that capacity^{to lend the amount was not an ingredientfor the} offence punishable under^{Section138 of the M Act' He alsorelied} upon the^judgment of^{the Hon'ble Apex Courtin Rohitbhai Jivanlal}

¶154

Patel v. State of Gujarat^{and anothere on the aspectthat:}

¶155

"The^{Trial Courtproceededto questionthe wantof evidence on} the part of the complainant^{as regards thesource of funds for} advancing loan to the^{accused and want of examinationof} relevant witnesses^{who allegedlyextendedhim money for} advancing it to the^{accused.This approach of the TrialCourt} had been at^{variancewiththe principles of presumptionin law'} After such presumption,^{the onus shiftedto the accusedand} unless the accused^{had discharged the onusby bringingon} record such facts and^{circumstances as toshowthe} preponderance ofprobabilities^{tiltingin his favour,anydoubton} ihe complainant's^{case couldnot have been raisedfor wantof} evidence regarding^{the source of funds for advancingloanto the} accused-appellant.^{The aspectrelevant for considerationhad} been as to whether^{the accused-appellant has brought on record} such facts/materiaVcircumstances^{which could be ofa} reasonably^{probable defence."}

¶156

Thus, these^{judgmentswould disclosethat the capacityto lend} the amount cannot^{be a probable defence to disbelieve the caseof the}

¶157

complainant.

¶158

'^{20l9 (2) ALD (crl.)385 (sc)}

¶159

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-- l

¶161

21 ':rtkc No.2092 DTGRR.J20t6

¶162

Sorne c h:r technicalities were also raised by the revision petitioner - ac :used stating that Ex.P3 cheque ieturn nrefiro was not signed b..- the brrnker who issued it. The trial cour! ac(luitted the accused on the said sole ground. As such, the compk.inant had taken steps to addu( : the additional evidence under Secticr: 31)1 Cr.p"C" during the cou st: of appeal and got examined the Asriir,tant Manager of SBI as PW. 1 cn his behalf. PW.2 stated in ner er/ rdenoe that the complainant ar d his daughter Lavanya had joint savlils ;iccount in their branch ar C the complainant presented a cheque oi IOICI Bank with cheque \o.583903 dated 13.08.2007 for zur arnount of Rs.3,25,000/-. F,x.P2 was the said cheque and the sirjri cheque was presented bef r(, ICICI Bank and they receive,l th,: cheque endorsement as ",,top payment by the drawer' anci cons:cluerLtly issued a memo ciated I 1.08.2007 which was marked as Ex.l)3" fihe stated that it did nor :ontain the signature but it contained th e s,:al of the bank and it wi s also entered in the Cheque Return I(,:gir;ter. She fuilher stated ti al she had brought the Cheque I{eturr. Jtegister with her and basing n the request of the complainant, the Ba.rrk authorities issued a letter Iated 12.02.2013 marked as Ex.P6^^'tl:ough it was suggested to he in the cross-examination that as per t*:ction 146 of

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D,ARR,J Ctl.RC No 2092^20t6

¶168

the NI Act and Bankers^{Books EvidenceAct, 1891, the ohequeretum} memo should contain the^{seal as well as the signatureof the} authorities, the^{witness statedthat it was a practice to put stampand} deliver to the party^{and Ex.P3 did not contain the signature of the} Bank Manager. She^{stated that only if partyinsisted,the Off,rcer} would sign on the^{return memo. She alsostated that Ex'P6also} contained the seal of^{their bank and therewas differencein between} the seals on Ex.P3^{and Ex.P6, but stated that both the seals were} official seals oftheir^bank.

¶169

The learned^{counselfor the respondent-complainanthad also} relied upon Section^{4 of the Bankers'Books EvidenceAct, 1891} wherein the mode of^{proof of entries in bankers'book wasstatedas}

¶170

follows:

¶171

"4. Mode of^{proofof entries in bankers' books.- Subject to the} provisions of this Act,^a certified^{copy ofany entry in a banker's} tooks shall in all legal^{proceedings be receivedas prima facie} evidence of^{the existenceof such entry, and shall be admittedas} evidence of the matters,^{transactionsand accountstherein} recorded in every^{casewhere, and to thesame extentas,the} original entry itself now by^{lawadmissible,but not furtheror} otherwise.

¶172

Thus, PW.2 had^{produced the originalcheque retumregister to} the court and^{also gave her evidence statingthat the cheque retum}

, .

memo mrrke( as Ex.P3 was issued by their hank.^'l'hus, the said evicience of P V,2 and the document marked under Iir.P-1 cannot^be suspec!ec

¶177

39"^'lhus, th s Court does not find any illegality or irre:gularity in the ju<igment of tl e iower appellate court in confirrning 1l:e €;uilt of the accused under icction 138 of the Negotiable Inslrumettr.s Ar:t.

¶178

40 " As per h,:^jucigment of the Hon'ble Apex Oor rl in Kalamani Tex's case (8 srrpra), the three Judge Bench ,rf the )Ior'ble Apex Court staied t al there needed to be a consistcnt ap;r.:'oar:h towards awarding tl-re^{,lompensation} and unless there^,:r.isted special circumstances. the courts should uniformly levl fine u[) tc, twrce the cheque amour rrlong with simple interesl @ 9%^per annum, it is considered fit .o modifu the sentence of rigorous inr: risc,nment for one year and fne of Rs.3,25,000/- to only paylncxlt of fine of Rs.6,50,0001 ,nrl the fine amount to be paid as comp:nsation to the respondent-cor rplainant

¶179

41 In thc' result, the Criminal Revision Case is disrnissed confirming the iucigment dated 12.05.2016 passed in Crl.A. No.494 of

¶180

D..ANU Crl RC No.209Z^20t6

¶181

¶182

2Ol2 by the Additional^{MetropolitanSessionsJudge for Trial of}

¶183

Communal Offences^{Casescum VII Additional MetropolitanSessions} Judge, Hyderabad, but^{however, modiffing the sentence from one} year rigorous imprisonment^{and fine of Rs.3,25,000/- to payment of} fine of Rs.6,50,000/-^{only and the fine amount shall be paidas} compensation to the^{respondent-complainantwithin a period of three} (3) months from the date^{of this order and in default of paymentof the}

¶184

said amount, to undergo^{rigorous imprisonment for oneyear'}

¶185

Pending miscellaneous^{petitions, if any, shallstand closed'}

¶186

Sd/- M. MANJULA DEPUI)(REGISTRAR

¶187

//TRUE COPY//

¶188

sECffRr oFFrcER

¶189

To,