2020 (9) TMI 297 - HC - Indian Laws

Court upholds guilty verdict under Section 138 NI Act, dismisses revision petition, praises amicus curiae

The accused's arguments regarding lack of opportunity for cross-examination, absence of a creditor-debtor relationship, and invalid service of notice ... Dishonor of Cheque - the accused neither responded to the notice nor paid the demanded cheque amount - offence punishable under Section 138 of the Negotiable Instruments Act, 1881 - whether the Judgment of conviction and Order on sentence passed by the Trial Court and confirmed by the Session Judge's Court is incorrect and suffers with any illegality or perversity, warranting interference at the hands of this Court? HELD THAT:- Section 138 of the N.I. Act mandates giving of a legal notice but it does not mandate that the said legal notice must be actually and physically placed in the hands of the accused. When a legal notice has been sent with the correct, complete and full address of the accused with appropriate postage and when the said notice was tendered to the accused, if the accused fails to accept the notice and thus fails to claim the notice sent to him under registered post, there is deemed service of notice upon him. In addition to the same, in the case on hand, the complainant has also sent notice through 'certificate of posting' as could be seen at Ex.P5. Therefore there is valid service of legal notice upon the accused. Thus, the last phase of argument canvassed by the learned amicus curiae for the petitioner alleging non service of notice upon the accused is also not acceptable. The impugned Judgment of conviction and Order on sentence does not warrant any interference at the hands of this Court - Revision Petition dismissed. Issues involved:Accused's opportunity for cross-examination, existence of creditor-debtor relationship, service of notice demanding payment of cheque amount.Analysis:1. Accused's opportunity for cross-examination:The accused contended that he was not given a reasonable opportunity to cross-examine the complainant. However, a detailed examination of the order sheets revealed that the Trial Court provided numerous chances for cross-examination, but the accused failed to utilize them effectively. Despite multiple opportunities, the accused did not adequately cross-examine the complainant. Therefore, the argument that the accused was denied a fair opportunity for cross-examination was deemed unacceptable by the Court.2. Existence of creditor-debtor relationship:The accused claimed that there was no creditor-debtor relationship as he alleged the cheque was stolen from his house. However, the complainant's testimony, supported by bank records, clearly established the loan transaction. The complainant provided evidence that she had paid the loan amount to the accused through cheques, corroborated by bank statements showing the transactions. The Court found the evidence undeniable and concluded that a creditor-debtor relationship existed between the parties, rejecting the accused's defense.3. Service of notice demanding payment of cheque amount:The accused argued that there was no valid service of notice demanding the payment of the cheque amount. However, the complainant presented evidence of sending the notice through registered post and certificate of posting. The Court determined that when a notice is sent to the correct address with appropriate postage, the accused's failure to claim the notice constitutes deemed service. Additionally, the complainant's evidence and documentation proved the service of notice, rendering the argument of non-service invalid.In conclusion, the Court found no grounds for interference in the Trial Court's judgment. Both lower courts correctly held the accused guilty under Section 138 of the Negotiable Instruments Act. The sentence imposed was deemed proportionate to the offense committed. Therefore, the revision petition was dismissed, and the Court commended the amicus curiae for their service, recommending an honorarium for each. The Order was to be transmitted to the concerned Courts promptly.