PRAKASH ALIAS JNANAPRAKASH Vs. T S SUSHEELA

JUDGEMENT

(1.) Heard the learned counsel for the petitioner and the learned counsel for the respondent.

(2.) The petitioner was the accused before the Trial Court whereby the complainant had alleged an offence punishable under 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the Act", for brevity) under the following circumstances. It was the case of the respondent that she had lent a sum of Rs.2,25,000/- on 25th December, 2002 to the petitioner and in repayment of the said amount, the accused had issued a cheque in favour of the complainant for the said sum, dated 8th June 2004, drawn on Canara Bank, Tumkur Road Branch, Bangalore. When the cheque was presented for encashment, the same was returned with an endorsement that it had been dishonoured for insufficient funds in the account of the accused. Thereafter, the legal notice was issued, which was sent by way of Registered Post Acknowledgment Due as well as Under Certificate of Posting, calling upon the accused to pay the said amount covered under the Cheque. Since the petitioner failed to comply with the same, the complaint followed. The petitioner did appear before the Trial Court on summons being served on him and raised several defence, including the defence that the notice issued by the respondent-complainant under Section 138 of the NI Act was never served on him, apart from contending that though a promissory note was also produced in evidence of the loan transaction and the cheque having been issued on his account and duly signed by the petitioner, the contention raised was the cheque was not issued in discharge of any legal liability and the documents were sought to be misused by the complainant since she had procured them from the possession of one Rajanna, in whose custody it was as security in an independent chit transaction, and therefore, the complainant could not, on the basis of those documents, seek to enforce the liability or allege that the offence had been committed punishable under Section 138 of the NI Act. The Trial Court, however, negated the contention and convicted the petitioner for the offence and sentenced him to pay a fine of Rs.2,72,000/-, out of which a sum of Rs.2,70,000/- was to be paid as compensation to the respondent-complainant. That was carried in appeal. The Appellate Court has confirmed the conviction. It is this, which is under challenge in the present petition.

(3.) The learned counsel for the petitioner would vehemently seek to contend that insofar as the presumption raised under Section 139 of the NI Act in favour of the holder of the cheque is concerned, as to when the burden would shift to the complaint, notwithstanding such a presumption under Section 138 of the NI Act, has been spelt out by a three Judge Bench decision of the Supreme Court in the case of RANGAPPA v. MOHAN, 2010 AIR(SC) 1898 and would submit that it is laid down therein that such presumption is discharged not only by the accused tendering evidence before the Court, it could also be demonstrated from the evidence tendered by the complainant himself that no such legal liability existed. In the present case, it is the comprehensive defence of the petitioner that there was no complete transaction whereby it could be said that the cheque had been issued in support of an outstanding legal liability, as already contended, and the same had been issued not in discharge of any loan transaction as alleged by the complainant but was given as security and was to be in the custody of one Rajanna in an independent transaction and therefore the burden was clearly on the complainant to establish otherwise, and the Courts below had overlooked this legal aspect of the matter in proceeding to hold that the petitioner had committed the offence aforesaid. He would also submit that the petitioner's addresses were alternatively furnished by the complainant even in the complaint and hence the contention that notice was not duly served, has been glossed over by the Courts below. The petitioner belongs to a village coming under Nuggehalli Hobli, whereas it is evident that the complainant has shown the petitioner's village has been situated in Nagehalli Hobli and this error has apparently resulted in the notice not having been duly served on the petitioner and it was for this reason that the postal cover, which was sent by Registered Post Acknowledgment Due, purportedly containing the notice issued under Section 138 of the NI Act, had been returned as not claimed. The Courts below, therefore, could not have proceeded on a presumption that notice had been duly served on the petitioner and hence the very entertainment of the complaint not having complied with a mandatory requirement preceding the complaint, has been completely overlooked. The learned counsel would submit that positive evidence was tendered by the petitioner by fielding Rajanna, who was a mutual acquaintance of both the complainant and the petitioner, and in his evidence he has clearly stated the Cheque and the documents had been given as security in a chit transaction and that aspect of the matter has been completely negated by the Courts below in holding otherwise. The learned counsel for the petitioner also places reliance on a decision of this Court in case of DEVI PRASAD RAI v. A.M. GANESH RAI,2005 3 KCCR 1576 to contend that when notice is not served on the accused at the correct address, the burden of proof is on the complainant regarding dishonor and service of notice.