M.G. Sequeira vs Francisco Pinheiro and another

T.K. Chandrashekhara Das, J.—The petitioner was convicted and sentenced u/s 138 of the Negotiable Instruments Act, 1881, by the J.M.F.C., Margao in Criminal Case No. 450 of 1992. The complaint against the petitioner was that he had issued three cheques bearing No. 0705923, dated July 3, 1992, drawn on Canara Bank for Rs. 50,000, cheque No. 0705924, dated July 2, 1992, drawn on Canara Bank for Rs. 30,000 and cheque No. 0705926, dated July 2, 1992, drawn on Canara Bank for Rs. 30,000. It is alleged that when the aforesaid three cheques were presented to the bank for payment, all of them were dishonoured for insufficiency of funds. A legal notice was sent by registered post and the postal acknowledgment shows that it was served on the petitioner on August 10, 1992, in compliance with section 138(b) of the Negotiable Instruments Act (hereinafter called the "the Act"). The learned Magistrate went on with the trial and convicted the petitioner for the offence u/s 138 and sentenced the petitioner to pay a fine of Rs. 1,000 and also to undergo simple imprisonment for a period of six months.

The petitioner took the matter in appeal before the District and Sessions Judge, South Goa, in Criminal Appeal No. 15 of 1994. Among other things a point of non-service of notice has been raised for the first time at the appellate stage on behalf of the petitioner. At the trial stage this objection has not been raised. At the appellate stage the petitioner was trying to make out a case on a mere suggestion put on behalf of the petitioner at the time of cross-examination of the prosecution witnesses. Still the lower appellate court has again gone into the question and found that there was proper service of notice.

Before this court also learned counsel for the petitioner, Mr. Lotlikar raised only the question that the prosecution has not been proved regarding service of notice which is a mandate u/s 138(b) of the Act to sustain a conviction u/s 138 of the Act. The lower appellate court has discussed this matter elaborately and found that the said contention was not sustainable. Learned counsel for the petitioner submits that in view of the suggestion put to PW-1, no notice u/s 138 of the Act was given, the ingredients required to be proved by the complainant for sustaining a conviction u/s 138 of the Act has not been established. He further argues that in criminal jurisprudence the entire burden of proof of establishing the guilt against the accused is on the prosecution and when there is a suggestion that the notice u/s 138 was not given it is incumbent upon the trial court to go into that question and incorporate a question relating to the same in the question u/s 313 of the Criminal Procedure Code. Mr. Lotlikar, further argues that this infirmity in appreciation of evidence and the omission to ask a question u/s 313 is fatal to the prosecution and, therefore, the conviction and sentence passed by the trial court which was confirmed by the lower appellate court is liable to be set aside.

I cannot agree with this argument of learned counsel for the petitioner. The appreciation of the evidence both in criminal and civil cases is one and the same based on the principles and parameters prescribed by the Indian Evidence Act. It is proved in this case that three cheques were issued by the petitioner in favour of respondent No. 1. It is also proved that such cheques were dishonoured for insufficiency of funds. It was also proved by production of post acknowledgment due which contains the signature of the petitioner for having served the notice contemplated u/s 138(b) of the Act. It is common knowledge that a postal acknowledgment due containing a signature is a proper proof for service of any material on the addressee shown in the postal acknowledgment. It is on this basis, the complaint itself was taken cognizance of by the trial court. The production of such a postal acknowledgment will definitely raise a presumption against the petitioner that proper notice has been served on the petitioner. This presumption is available under the provisions of the Evidence Act as far as the postal acknowledgment due is concerned, till rebutted. In order to rebut the presumption inevitably there are two pleas which should have been raised in defence by the petitioner. One is that the notice was not served on him and secondly that the signature found on the postal acknowledgment due is not of his. Unless these two objections were raised at the earliest opportunity, the petitioner was not entitled to challenge the validity of the postal acknowledgment due either at the lower appellate stage or the revisional stage.

I find that this objection, as rightly pointed out by the lower appellate court has not been raised in such a manner. Even the suggestion raised by him for not giving the notice u/s 138(b) is very vague. The presumption raised in respect of the postal acknowledgment due has not been shaken or demolished by the petitioner in this case. Therefore, I have no hesitation to hold that the first respondent has discharged the burden required to be proved u/s 138 of the Act.

Learned counsel for the petitioner then cited a decision in Rajiv Kumar Vs. State of U.P., where it was held that when there is no proof of service of notice the complaint u/s 138 is not maintainable. I am afraid this decision will not be helpful to the petitioner. The case in hand is not a case of absence of proof of service of notice. Here is a plea of non-receipt of notice which has been belied by the complainant by production of a postal acknowledgment due containing the signature of the petitioner. In view of this, I do not find any ground to interfere in this matter. The lower appellate court has dealt in detail with all the aspects of the case and I do not find any ground for exercising this revisional jurisdiction in favour of the petitioner.

Hence the criminal revisional application is dismissed. There shall be no order as to costs.

Mr. Lotlikar, learned counsel for the petitioner, prayed for two weeks time to settle the matter by making payment covered under the impugned judgment. Considering the sincere plea of counsel, the judgment of this court will operate only after two weeks. Consequently, the conviction and sentence passed by the court below is suspended for two weeks.