2004 (10) TMI 639 - HC - Indian Laws

Accused found guilty in cheque bounce case, liability established beyond doubt.

The Court found the accused guilty under Section 138 of the Negotiable Instruments Act, 1881, overturning the Judicial Magistrate's acquittal. The Court ... - Issues Involved:1. Receipt of notice by the accused.2. Existing liability of the accused at the time of cheque issuance.Issue-wise Detailed Analysis:1. Receipt of Notice by the Accused:The complainant-Credit Society had advanced a loan of Rs. 1,50,000/- to the accused, who issued a cheque for Rs. 90,000/- which was dishonored due to insufficient funds. The complainant sent a registered notice to the accused, which was claimed to be not received by the accused. The Judicial Magistrate acquitted the accused on the basis that the A.D. card did not bear the accused's signature, thus failing to prove receipt of the notice.The complainant challenged this finding, arguing that the notice was sent to the business address provided by the accused and that the presumption under Section 27 of the General Clauses Act, 1897 should apply. The presumption states that a properly addressed, prepaid, and posted letter is deemed to be delivered unless proven otherwise. The complainant cited several precedents, including Madan and Co. v. Wazir Jaivir Chand, Satish Jayantilal Shah v. Pankaj Mashruwala, and K. Bhaskaran v. Sankaran Vaidhyan Balan, which support the presumption of service when a notice is sent to the correct address.The Court concluded that the presumption under Section 27 of the General Clauses Act is applicable and that the accused failed to rebut this presumption convincingly. The Judicial Magistrate's reliance on the A.D. card alone was insufficient to displace the statutory presumption.2. Existing Liability of the Accused at the Time of Cheque Issuance:The Judicial Magistrate concluded that the accused's liability was Rs. 86,089/- as of 30th September 2000, which was less than the cheque amount of Rs. 90,000/-, and thus, there was no existing liability for the cheque amount. The complainant argued that the total amount due was Rs. 1,92,350/- as per the evidence presented, which included both oral and documentary proofs. The Judicial Magistrate overlooked this evidence and based the decision on an incorrect assessment of the liability.The Court agreed with the complainant, stating that the accused owed Rs. 1,92,350/- and the cheque for Rs. 90,000/- was indeed towards a part of this liability. The Court referred to Kochayippa v. Suprasidhan, which clarified that a cheque issued for a lesser amount than the actual liability still constitutes a valid cause of action under Section 138 of the Negotiable Instruments Act.Conclusion:The Court found the Judicial Magistrate's findings on both counts to be erroneous and perverse. It held that the complainant had proven its case beyond reasonable doubt and that the accused was guilty under Section 138 of the Negotiable Instruments Act, 1881. The judgment of acquittal was set aside, and the accused was convicted.