P JITHENDRANATH Vs. WALSON LABORATORIES

JUDGEMENT

(1.) The appellant who is the complainant in a petition filed under Section 138 of the Negotiable Instruments Act filed this appeal against the acquittal of the respondent/accused under Section 255(1) of the Code of Criminal Procedure. His case was that the accused persons had borrowed Rs. 3,00,000 from him for the purpose of the first respondent M/s. Walson Laboratories, Kozhikode, and the second respondent issued a cheque dated July 26, 1993, towards the liability. The second respondent is the managing partner. Respondents Nbs. 3 and 4 are the partners of the registered firm. The cheque was signed by the second respondent. Since there was no sufficient money in the account of the second respondent, the cheque was dishonoured and he approached the court. The magistrate's court after considering the evidence found that the complainant failed to prove that the cheque was issued in discharge of a legally enforceable debt and also found that if a deemed date is taken as the date of service of statutory notice to the second respondent, the matter is time-barred. Service of notice to the second accused as contended by the complainant was not proved. I have gone through the evidence. As regards the first contention, neither in the sworn statement nor in the chief examination the appellant/ complainant stated that the cheque was issued for a valid consideration. He did not depose in the chief examination the date when advance was given, when the cheque was received and at which place it was issued. But, during the cross-examination it is stated that the cheque was issued at his house and he also stated that he advanced money to the first respondent firm as it was in dire financial needs. He has a further case that he had Rs. 1,25,000 in cash with him and he borrowed Rs. 1,75,000 from one Bala Kurup and paid Rs. 3,00,000 to the second respondent for the purpose of the firm. The source of Rs. 1,25,000 kept by him in cash was not proved. He did not also examine Bala Kurup or adduce any evidence to show that Bala Kurup handed over the balance of Rs. 1,75,000 to him. Being a bank employee the complainant should have details of the money he was having and money he has borrowed. So, relying on the evidence of the complainant itself the trial court came to the conclusion that the complainant was not able to prove that the cheque was issued for a valid consideration. Respondents Nos. 2, 3 and 4 are brothers of the complainant and it has come out in evidence that there are various other cases pending between them. Another bank manager also filed cases against these accused and according to the respondents/accused those cases are also filed at the instance of the complainant. Section 139 of the Negotiable Instruments Act only provides rebuttable presumption. It is settled law that burden of the accused to rebut the presumption is by preponderance of probabilities and not beyond reasonable doubt. Since from the evidence of the complainant itself accused was able to prove that consideration was not paid and, therefore, initial burden has been discharged by the accused, presumption under Section 139 of the Negotiable Instruments Act disappeared in this case as held by the Supreme Court in M.S. Narayana Menon alias Mani v. State of Kerala, 2006 132 CompCas 450.

(2.) Secondly, it was found that there was no valid service of notice and if there was valid service of notice complaint is time-barred. As far as the first accused firm is concerned, even according to the complainant, the money was given for the firm and the cheque was issued in the name of the firm, but, no evidence was adduced to show that any notice was issued to the first accused firm. With regard to the second accused, notice was returned unserved stating that "door was locked". Endorsement in the acknowledgment card (exhibit A9) shows that notice was issued to the second accused at a given address. The postman found that the addressee left that place and letter was redirected on July 29, 1993. The postman on getting information about a possible address of the accused redirected the letter to another place. There it was found that the door was locked on July 31,1993, and it was returned with an endorsement "door locked". The court was of the view that if "giving of notice" is sufficient as contended by the complainant, then, July 29, 1993, the date when postman returned the notice with the endorsement "door locked" should be taken as the acceptance date. If that be so, complaint was time-barred. But, the notice sent was not issued at the correct address. The accused has the case that letter was also not redirected to the correct address and, therefore, "giving of notice" in some address is not, enough for complying with, statutory requirement of service of notice.

(3.) Learned Counsel for the appellant relied on the decision of this Court in Mohammed Ashraf v. Shrafuddin, 2003 3 KerLT 77, where it is stated that by giving a notice in the correct address will be sufficient. But, there the notice was given in the correct address. The only defect was that complainant was not able to produce acknowledgment card. Here, the notice was not given in the correct address. So that the decision is not applicable to this case. In V. Raja Kumari v. P. Subbarama Naidu, 2004 3 KerLT 799, the Supreme Court held that "giving notice" is not the same as "receipt of notice". In that particular case, notice was given in the correct address and acknowledgment card came with the endorsement that "house been locked". In such circumstances, the Supreme Court held that burden is on the complainant to show that the accused has managed to get an incorrect postal endorsement by some arrangement. Here, finding of the court below was that notice was not given in the correct address and if it was given in the correct address, endorsement "addressee left" July 29,1993) can be taken as the deemed date of service of notice and then complaint is time-barred. It is a possible view. Cause of action to prosecute drawer of the cheque arises when the drawer fails to make payment within 15 days of "receipt" of the notice as held in D. Vinod Shivappa v. Nanda Belliappa, 2006 CrLJ 2897 . In the above decision the apex court held as follows (page 674):