Kamlesh vs Naheem Khan

This criminal appeal under Section 378 of Cr.P.C. has been filed against the judgment dated 22.12.2008 passed by JMFC, Shivpuri in Criminal Case No.1646/2007 by which the complaint filed by the appellant against the respondent for an offence under Section 138 of Negotiable Instruments Act has been dismissed.

The necessary facts for the disposal of the present appeal in short are that a criminal complaint was filed by the appellant against the respondent for an offence under Section 138 of Negotiable Instruments Act on the ground that on 13.8.2007 the respondent had taken an amount of Rs.51,500/- by way of loan for his domestic as well as business requirements and had promised to repay the same within a month. But when the respondent did not repay the amount inspite of repeated reminders given by the appellant, therefore, on 1.10.2007 the respondent gave a cheque to the appellant which was returned back by the Bank on the ground of "Insufficient Funds". A notice under Section 138 of Negotiable Instruments Act was given and accordingly it was alleged that the respondent has committed an offence under Section 138 of Negotiable Instruments Act. The Magistrate by order dated 20.8.2008 framed the charge under Section 138 of Negotiable Instruments Act. The respondent abjured his guilt and pleaded not guilty.

The appellant in his defence had stated that as the respondent was his neighbor, therefore, he had family relations with him. The respondent had demanded a loan of Rs. 51,500/- because of his personal requirements. On 13.8.2007 the amount was given to the respondent and he had promised to repay the same within a month. After the expiry of one month when he demanded the money back, the respondent further prayed for 15 days'' time. Thereafter on 1.10.2007, the respondent gave a cheque in dispute which is Ex.P/1. Cheque was presented which stood bounced on the ground of "Insufficient Funds". The reply given by the Bank is Ex.P/2. However, the appellant could not state that on which date the memo from the Bank was received. It is further stated that after 5-6 days from the date of receipt of the memo he issued a notice to the respondent which is Ex.P/3. The notice was sent by registered as well as by UPC. The receipt of registered post is Ex.P/5 and the acknowledgment of receipt is Ex.P/6 and receipt of UPC is Ex.P/4. As the amount was not paid, therefore, the complaint was filed. In cross- examination, this witness stated that he has a business of manufacturing sweet boxes and is also having a STD booth. He further admitted that he has installed STD booth after encroaching upon the land of the railway. This witness further admitted that neither he pays the income tax nor he pays the sales tax/VAT. The appellant further admitted that the respondent has a business of fruit. He further stated that he did not enquire from the respondent as to why an amount of

Rs. 51,500/- is required. He further stated that the said amount was given in the presence of one Fingi Upadhyay. He denied that the cheque in question was filled up by him. He further stated that the cheque is in the handwriting of the respondent. This witness further stated that he do not remember that on what date and in which month he had presented the cheque. He also could not state that on what date he had gone to the Bank to verify that whether the cheque has been encashed or not. This witness further admitted that memo of the Bank which is Ex.P/2 do not contain the seal of the Bank. This witness also could not tell the name of the Branch Manager who has signed the memo Ex.P/2. He also admitted that he cannot identify the signatures. He further admitted that on the acknowledgment of receipt of notice in place of the signatures of the recipient only the name of Naseer is mentioned and further admitted that the signatures on disputed cheque as well as on the acknowledgment of receipt is Ex.P/6 are different. He further submitted that he cannot say that whether the notice Ex.P/3 was received by the respondent or not.

The respondent did not examine any witness in his defence.

The Trial Court acquitted the respondent on the ground that the appellant has failed to prove that he had given an amount of Rs. 51,500/-. It was further held that as the appellant has failed to prove that the notice issued under Section 138 of Negotiable Instruments Act was served on the respondent. It was further held that the contention of the appellant that an amount of Rs. 40,000/- to 50,000/- is generally kept in his house is not reliable as the appellant himself has admitted that he is not an income tax payee.

It is submitted by the counsel for the appellant that the court below failed to see that as the notice was sent by

registered post, therefore, in view of provisions of Section 27 of General Clauses Act it should be presumed that the notice was served on the respondent. Furthermore, it was submitted that as the appellant is having two businesses, therefore, if he was keeping cash amount of Rs. 40,000/- to 50,000/- in his house, then it cannot be said that such a conduct of the appellant is not worth acceptance.

None appears for the respondent though SPC was also issued by this Court by order dated 21.3.2016.

Heard the learned counsel for the appellant.

So far as the application of Section 27 of General Clauses Act is concerned, in the considered opinion of this Court the said provision would not apply in the present case. Section 27 of General Clauses Act, 1897 reads as under:-

"27 Meaning of service by post.-

Where 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 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."

Thus, where a properly addressed and prepaid registered post letter is issued then unless contrary is proved, it shall be presumed that the delivery of the same has been effected at the address in the ordinary course of post. However, in the present case it is the case of the complainant that the acknowledgment of receipt of the registered post was received. The respondent further admitted that "Naseer" was mentioned in the acknowledgment of receipt whereas the name of the respondent is Naheem Khan. Further the appellant has admitted in his cross-examination that he cannot say that whether the notice issued under Section 138 of Negotiable Instruments Act was served on the respondent or not.

The Supreme Court in the case of N.K. Wahi vs. Shekhar Singh & Ors . reported in (2007) 9 SCC 481 has held as under:-

"10. In order to bring application of Section 138 the complaint must show:

That cheque was issued;

the same was presented;

it was dishonoured on presentation;

a notice in terms of the provisions was served on the person sought to be made liable;

despite service of notice, neither any payment was made nor other obligations, if any, were complied with within fifteen days from the date of receipt of the notice."

Thus, it is clear that the complainant has failed to prove that the notice which was sent by him under Section 138 (b) of Negotiable Instruments Act by registered post was served on the respondent. The appellant has stated in his cross- examination that he had not enquired from the respondent that for what purposes he is in need of Rs. 51,500/-. He further stated that the said amount was paid in the presence of one Fingi Upadhyay but for the reasons best known to the complainant he did not examine said Fingi Upadhyay in support of his case. Even it is not the case of the appellant that any document in writing was executed acknowledging the payment of Rs. 51,500/- by way of loan.

Under these circumstances, it cannot be said that amount of Rs. 51,500/- was given by the appellant to the respondent by way of loan. The Magistrate by judgment dated 22.12.2008 has also come to a conclusion that the appellant has failed to prove his case beyond reasonable doubt and has acquitted the respondent for offence under Section 138 of Negotiable Instruments Act.

It is well established principle of law that when two views are possible and where the Trial Court has adopted a view favourable to the accused then unless and until the findings recorded by the Trial Court are perverse or dehorse the record, the judgment of acquittal should not be interfered with. In the present case the counsel for the appellant could not point out any perversity in the findings of the Trial Court. Accordingly, the judgment passed by the Trial Court is affirmed. The appeal filed by the appellant fails and is hereby dismissed.