TaxTMI 
TaxTMI 
2019 (10) TMI 299
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....is Advocate and eventually only on the said ground has dismissed the said complaint filed by the present appellant. 3. In Summary Criminal Case No.3245 of 2016, it was the case of the present appellant (hereinafter referred to as the complainant) that the respondent had purchased CRCA Steel Sheets from the appellant Firm worth Rs. 1,25,052/- and towards the payment of the said amount, had issued the subject cheque. It stood dis-honoured on the ground 'Account Closed'. It was his further contention that he then issued a statutory notice as envisaged under Section 138(b) of the N.I. Act, to the respondent and demanded the amount of the cheque from him. The notice was duly served upon the respondent, but he did not pay the amount of the said cheque within the stipulated period. In the circumstances, the complainant filed a complaint under Section 138 of the N.I.Act, against the respondent. Alongwith complaint, the complainant had filed on record the copy of the cheque issued by the respondent, cheque return memo received from the bank, the office copy of the notice and the acknowledgement receipt. The acknowledgement receipt was not received within the expected period. The appellan....
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....sons, the learned Magistrate eventually acquitted the accused. 6. Shri M.V.Ghatge, learned counsel appearing for the appellant submitted that the learned Magistrate has manifestly erred in acquitting the respondent on the ground that the complainant failed to prove the service of the statutory notice upon the respondent. The learned counsel submitted that, in his examination-in-chief, the complainant had specifically deposed that after receiving the cheque return memo from the concerned bank, he had sent a legal notice through his counsel to the respondent demanding the amount of cheque and the same was duly served upon the respondent as per the report received in that regard from the Postal authorities. The learned counsel submitted that the facts so deposed on oath by the complainant were neither denied nor disputed by the respondent in the cross-examination of the complainant. The learned counsel submitted that in the circumstances, there was no substance in the objection raised on behalf of the respondent that the office copy was not bearing any signature. 7. The learned counsel cited the Judgment of the Honourable Apex Court in the case of Indra Kumar Patodia and ....
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....rial Court has recorded a clear finding holding that the accused had issued the subject cheque to the complainant towards discharge of legally enforceable debt/liability. The learned Trial Court has also held that the subject cheque was presented for its encashment within the statutory period and it stood dishonoured on the ground 'account closed' . 10. In his testimony before the Trial Court Jayesh Kushalchand Parekh (PW-1), who is the complainant, has deposed that after receiving the cheque return memo from the bank, the statutory notice, as envisaged under Section 138 of the N.I.Act, was issued by him through his counsel on 22.03.2016 by R.P.A.D. PW-1 has further deposed that since the acknowledgement receipt was not received, he had filed a written complaint in that regard on 29.04.2016 to the Postal authorities, whereupon, he was informed by the Postal authorities that the notice was duly served on the respondent accused on 23.03.2016. In the cross-examination of PW-1, the facts stated as above by him remained un-shattered. Respondent neither denied the fact of issuance of notice by the complainant nor the fact in regard to the report received from the Postal authorities re....
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.... notice. As noted earlier, it was deposed by PW-1 that by sending notice dated 22.03.2016, cheque amount was demanded from the respondent. As has been held by the Honourable Apex Court in the case of Indra Kumar Patodia and Another (supra), when the complaint was verified by the complainant, even though the said complaint was not signed by the complainant, it was quite maintainable. Applying the said analogy, it has to be held in the instant matter that when complainant has deposed that the notice was sent to the respondent demanding the cheque amount and its office copy was filed on record, though the same was not signed by him or his counsel, on that ground, it could not have been held that there was no notice to the respondent as envisaged under Section 138(b) of the N.I.Act. 13. The similar issue was for consideration before the learned Single Judge of Karnataka High Court in the case of Sri Satyanarayana Gowda Vs. Rangappa [1996 CRI.L.J. 2264]. In the said matter also an objection was raised on behalf of the accused that, the notice said to have been issued through the Advocate of the complainant, was not signed. It was therefore contended on behalf of the accused that the ....
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....ure is invalid in the eye of law. Hence, the argument of the learned counsel for the petitioner is unsustainable." 14. In the above matter, the learned Single Judge had relied upon one earlier Judgment of the Karnataka High Court in the case of Sha Jetmal Vs. The General Manager, Southern Railways [AIR 1995 Kar. 219]. In the said matter, the plaintiff though had issued a notice under Section 80 of the Code of Civil Procedure (CPC) before filing of the suit, it was not signed by him or his Advocate. The Court of first instance dismissed the plaintiff's suit on the ground that there was no compliance of provisions under Section 80 of the CPC in view of the fact that the notice which was issued by the plaintiff before filing of the Suit, was not signed either by the party or by the Advocate. The order passed by the Court of first instance was first challenged before the District Court and thereafter before the High Court. The High Court held that notice, even though unsigned, sufficiently complies with the requirements of Section 80 of the CPC and hence was a valid notice. 15. In the case of Sha Jetmal (supra), the Karnataka High Court had referred to and relied upon the Judgmen....
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....y of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it." 17. Our laws of procedure are based on the principle that "as far as possible, no proceeding in a court of law should be allowed to be defeated on mere technicalities". Here, all the requirements of Section 80 of the Code were fulfilled. Before the suit was brought, the Dominion of India received a notice of claim from Seth Lachman Dass. The whole object of serving a notice under Section 80 is to give the Government sufficient warning of the case which is going to be instituted against it was that the Government, if it so wished, settle the claim without litigation or afford restitution without recourse to a court of law. That requirement of Section 80 was clearly fulfilled in the facts and circumstances of the present case. 18. It is a matter of common experience that in a large majority of cases the Government or the public officer concerned makes no use of the opportunity afforded by the section. In most cases the notice given under Section 80 remains unanswered till th....
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.... the mandatory requirement of issuing notice in writing to the respondent since the notice was not bearing signature either of the party or the Advocate. 19. It is, however, difficult to agree with the argument as has been advanced by Advocate Shri Gore. The facts of the present case and the facts which were existing in the case of Shaikh Farooq (supra) are distinguishable. In the said matter, the notice, which was sent to the respondent, itself was not signed, whereas in the instant matter, the office copy of the notice filed on record alongwith the complaint is not signed by anybody. As because the office copy is not signed, no such conclusion can be drawn that the notice, which has been duly served upon the respondent, was also unsigned. Admittedly, the respondent has not placed on record the copy of the notice served upon him. The learned Trial Court has also observed in paragraph No.17 of the impugned Judgment that in absence of the copy of the notice sent to the accused, it cannot be ascertained whether it was signed or not. In the next paragraph, the learned Trial Court, however, had gone wrong in observing that there is no concrete evidence on record to establish that th....
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....rvice of notice, the same could have been entertained keeping in view the decision of this Court in the case of Vinod Shivappa ?". The larger Bench of the Apex Court, while answering the reference made to it, held that, when the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issuing notice in terms of Clause (b) of proviso to Section 138 of the N.I.Act, stands complied with. The larger Bench has, further, observed that the complaint must, however, contain basic facts regarding the mode and manner of issuance of notice to the drawer of the cheque and the same shall be held to be compliance of the mandatory statutory procedural requirements. As has been further observed by the larger Bench, it would be then for the drawer to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the cover was incorrect or that the said item was never tendered or that the report of the Postman was incorrect. 23. In the present matter, the complainant has specifically averred in the complaint filed by him that the statutory demand ....
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....despatched without the signature either of the party or the Advocate, only on that count, no such conclusion can be recorded that there was no compliance as contemplated under Section 138(b) of the N.I.Act. As has been explained by the Honourable Apex Court in the case of D.Vinod Shivappa Vs. Nanda Belliappa [(2006) 6 Supreme Court Cases 456], (supra), the very purpose of adding proviso (b) and (c) to Section 138 of the N.I.Act, is to protect the honest drawers, whose cheques may have been dishonoured for the fault of others or who may genuinely wanted to fulfill their promise but on account of inadvertence or negligence fail to make necessary arrangement for the payment of the said cheque. Thus, what is required to be communicated to the drawer of the cheque is the fact that the cheque issued by him to the payee has stood dishonoured for want of insufficient funds or for the reason as is mentioned in cheque return memo and there must be a demand that the drawer of the cheque shall make payment of the amount of the said cheque within fifteen days from receipt of the said notice. As has been provided in Section 138 of the N.I.Act, if the drawer of the said cheque makes payment of th....
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....ount or that the said communication was lacking necessary particulars as are contemplated under Section 138(b) of the N.I.Act. It is also not the case of the respondent that the contents of the communication received to him and the contents of the office copy placed on record are not tallying with each other. It is also not the case of the respondent that the communication received to him does not bear the signature either of the complainant or the Advocate through whom the complainant had sent the said notice to him. In the above circumstances, it has to be presumed that the communication received to the respondent by R.P.A.D. on 23.03.2016, was the notice contemplated under Section 138(b) of the N.I.Act., irrespective of the fact that the office copy of the said notice filed alongwith the complainant is unsigned. 29. From the facts as above and the other material on record, it is quite obvious that only after noticing that the office copy filed alognwith the complaint is unsigned, the respondent has cleverly raised a defence of non-compliance of the provisions under Section 138(b) of the N.I.Act. Had the office copy be bearing signature either of the party or his Advocate, per....