@JUDGMENTTAG-ORDER
K.N. Phaneendra, J.@mdashThis Revision Petition is preferred by the aggrieved accused challenging the judgment of conviction and sentence passed by the Civil Judge (Jr. Dn.) & JMFC, Alur in CC No. 484/2005 wherein the Revision petitioner/accused was convicted for the offence punishable under Section 138 of NI Act (hereinafter referred to ''Act'' for short) and sentencing him to pay a sum of Rs. 60,000/- as fine, in default to pay the said fine, to undergo simple imprisonment for six months and also awarding a sum of Rs. 55,000/- as compensation to the complainant, out of the fine amount. The said judgment was also confirmed by the FTC-II & Sessions Judge, Hassan in Crl. Appeal No. 46/2010 dated 9.1.2013.
2. The Revision Petitioner mainly called in question the above said two judgments on the legal ground that the complainant has not complied with the provisions of Section 138 of the Act strictly as the notice contemplated u/s. 138(b) of the Act was not served on the Revision petitioner. Therefore, without service of notice, the complaint filed by the complainant itself is not maintainable.
3. The learned counsel for the petitioner specifically contends that the provision u/s. 138(b) of the Act has not been complied with. Secondly, the Revision petitioner in a very casual and omnibus manner submitted before the Court that he is not liable to pay any amount to the complainant, therefore, the complaint filed on the basis of the said dishonoured cheque does not come to the aid of the complainant. Therefore, the Trial Court and the First Appellate Court have committed serious error in convicting the accused.
4. Per contra, the learned counsel for the respondent-complainant strenuously contended that the notice as contemplated u/s. 138(b) of the Act has been sent to the correct and known address of the accused. The said notice was returned with a shara ''not claimed''. Therefore, the Trial Court has rightly drawn the presumption that the said notice has been served on the accused in view of the shara recorded by the postal authorities and held that it was a deemed service and therefore, the court had convicted the accused.
5. Further added to that, though there is absolutely no denial with regard to the issuance of the cheque and also cheque being bounced and the complaint being filed within time. That the accused has also led evidence of six witnesses and got marked several documents but all those documents does not show that the accused has not at all issued any cheque in favour of the complainant. Therefore, considering all the relevant materials, the Trial Court has properly appreciated the oral and documentary evidence on record and convicted he accused. Therefore, there is no room to interfere with the judgment of conviction and sentence passed by the Trial Court which is rightly confirmed by the First Appellate Court.
6. On perusal of the materials on record, it discloses that the respondent - herein has filed a private complaint making allegations that the accused requested the complainant for financial assistance of Rs. 50,000/- for meeting immediate financial difficulties on 1.3.2005. The complainant being the sister of the accused believed the request and paid a sum of Rs. 50,000/-. Towards repayment of the said amount, the accused has issued a post dated cheque in favour of the complainant in No. 386587 dated 20.8.2005 drawn on Syndicate Bank, Kudremukh branch for a sum of Rs. 50,000/- and assured that the same will be honoured on the date of presentation. The complainant has presented the said cheque and the same was returned with a bankers shara ''funds insufficient'' vide endorsement dated 20.5.2005.
7. It is the specific case of the complainant that he issued a notice to the accused on 23.08.2005 both by RPAD and also by certificate of posting and the said notice was returned with a postal shara as ''not claimed'' vide endorsement dated 30.09.2005. Therefore, the complainant was forced to file the complaint as the complainant has not repaid the said amount. The Trial Court has proceeded to record the plea of the accused and thereafter provided opportunity to both the parties and ultimately, after analyzing the materials on record recorded the judgment of conviction and passed the sentence accordingly as noted supra.
8. As could be seen from the evidence of the parties, there is absolutely no denial with regard to issuance of the cheque that on 18.4.2005 he has given a cheque for Rs. 50,000/- in the presence of the Notary public at the time of entering into a compromise agreement between the parties and in fact there was a suit between the parties before the Hassan Court in OS No. 220/2003 and in connection with the said case, they have compromised the matter. It is the case of the accused that he has repaid the entire amount by way of cash and demanded for returning of the said cheque in favour of the accused. However, the complainant has avoided to return the cheque on the ground that the said cheque has been misplaced and he would search out the said cheque and return the same. Because of the relationship he kept quite believing the words of the complainant. But in spite of his repeated request, the cheque has not been returned and the same is misused by way of filing the complaint.
9. Therefore, looking to the above said evidence, it is the specific case of the accused that he has repaid the said amount later and demanded for the returning of the said cheque. The Trial Court has drawn the presumption that once the cheque has been issued, it raises a presumption u/s. 139 of the Act that the said cheque was issued for consideration in lieu of repayment of any debt or part of the debt. The accused has to establish before the court that the entire amount has been repaid and that the said cheque was retained by the accused. The Trial Court has appreciated the evidence of the accused and on facts come to the conclusion that the accused has not established the case before the court showing that the complainant has unnecessarily retained the said cheque in spite of there was no due on the part of the accused. In exercising powers u/s. 397 of Cr.P.C.., the Revisional court should not go into the factual aspects discussed above and findings being given by the two courts. The court can only disturb the findings of the trial court if without there being any evidence, the court has passed an order illegally or any evidence which has been led by the parties has not been taken into consideration at all. In such circumstances only, the Revisional court can interfere with the judgment of the Trial Court or the First Appellate Court. There is no ground urged before this Court by the learned counsel with reference to the judgment of the Trial Court or the First Appellate Court, particularly with reference to the non-appreciation of any facts involved in the case. Therefore, I am reluctant to interfere with the judgment of the Trial Court or the First Appellate Court so far as the factual aspects are concerned.
10. Even otherwise, Section 81 of the Negotiable Instruments Act imposes the responsibility on the holder of the cheque, to demand for showing and return of the cheque issued, after due payment or if the cheque is lost on endorsement to that effect. Even after payment of the said amount, if no amount is due the said cheque continues to be in possession of the complainant and no action has been taken by the accused, to take back the said cheque, the court with all probabilities has to presume that the holder of the cheque is entitled to claim the amount under the cheque if it is not proved to the satisfaction of the court with regard to the repayment of the amount or the accused not proving or not liable to pay any amount. Therefore, on this ground also, there is no need for this court to go in detail with regard to the evidence recorded on the side of the parties because both the courts have appreciated the said evidence on record and come to the conclusion that the accused has not proved his defence taken up in the case.
11. Before adverting to the second ground it is just and necessary to bear in mind the mandatory retirement under Section 138(b) of the Act which reads as under:-
"138(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 30 days from the date of receipt of the information by him from the Bank regarding the return of the cheque as unpaid;"
12. The important ground urged before this Court is that notice has not been served on the accused as contemplated u/s. 138(b) of the Act. On careful perusal of the materials on record, it shows that Ex. P7 is the registered post letter which was addressed to the accused to the following address.
"Akbar Pasha, S/o. Sabjusab,
Mines Department,
Kudremukh Iron Ore Ltd.,
Kudremukh Post,
Mudigere Taluk - 577 142
Chikkamagalur."
This document bears the postal seals and this document was returned with a postal shara ''not claimed'', ''return to sender on 13.09.2005''. Therefore, it was returned to the sender. There is no endorsement of the postal authorities that the said addressee was not in the address and the address given on the postal cover was incomplete and not possible to serve the said notice on the accused. But the shara discloses that it was returned due to not claiming of the said cover though the intimation was delivered to the concerned that clearly indicates that the person whose address has been mentioned on the cover was in existence and he failed to claim the cover. Therefore, the Trial Court on relying upon several rulings cited by the learned counsel and after analyzing the materials on record came to the conclusion that it is a deemed service on the accused.
13. Be that as it may, another important aspect to be looked into is brought to my notice by the learned counsel that on the basis of such deemed service of the notice, the complainant has filed the complaint u/s. 200 of Cr.P.C.. and the court has issued summons to the accused to the same address and the accused has appeared before the court and contested the proceedings. This also indicates that the address mentioned in the complaint are accepted by the accused and only for the nominal sake, the defence has been taken that the notice has been addressed to the wrong address of the accused. Further added to the above said circumstance, after the judgment rendered by the Trial Court the accused has preferred the appeal before the First Appellate Court in Crl. A. No. 46/2010 on the file of the FTC-II and Sessions Judge, Hassan. Very peculiarly, the appellant has mentioned the same address in the array of parties in the appeal memorandum, his address exactly tallies with the address given by the complainant in the complaint as well as in the memorandum of appeal.
14. The learned counsel also drawn my attention to the postal cover wherein it is mentioned that he is working in the Mines Department instead of mentioning C&C department. The postal authorities have not mentioned any shara on the cover as I have already mentioned that the accused was not at all working in Kudremukh Iron Ore Ltd.,
15. Looking to the above said circumstances, the accused though has taken up the contention that the notice was not properly served upon him, but failed to examine the postal authorities to exactly show that the said notice was not taken to him in the address mentioned in the complaint and the same was returned without intimation to him and without his knowledge. Therefore, in my opinion also the said notice issued by the complainant can be safely taken as deemed to have been served on the accused.
16. Further added to the above circumstances, notice u/s. 138(b) of the Act is contemplated only for the purpose of bringing it to the notice of the accused with regard to the dues under the said cheque and bouncing of the cheque and for payment of the cheque amount. The only course open to the accused after service of that is he has to comply with the notice by making repayment of the money. The intention of the accused should be shown that if the notice would have been served upon him, he would have repaid the said amount. His conduct should have been shown by the accused atleast by depositing the said amount before the court to show that if that notice would have been served upon him, he would have complied with the same. Therefore, in my opinion, service of notice so far as this case is concerned, is properly held to be deemed service on the accused. There is no ground available to the accused to contest the case, perhaps this is the ground taken by him, if possible to defeat the rights of the complainant. Such an attitude of the accused should not be encouraged by the courts of law. Moreover, as I have already explained, while exercising the powers u/s. 397 of Cr.P.C., the court should not normally venture upon to deal with the merits of the case by reanalyzing the evidence on record. Hence, looking to the surrounding circumstances, I do not find any strong reasons to interfere with the judgment of the Trial Court as well as the First Appellate Court. Therefore, there is no grounds to admit this Revision Petition. Hence, at this stage itself, the Revision Petition deserves to be dismissed.
Accordingly dismissed.
