TaxTMI 
TaxTMI 
TaxTMI 
2025 (10) TMI 63
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....ed the findings rendered by the Magistrate by holding that the Complainant had failed to prove that the cheques issued by the Accused were towards legally enforceable debt, and also on the ground that the JMFC had erred in holding that the legal notice of dishonour of cheque was received by the Accused. 2. I have heard Advocate Dhaval Zaveri along with Advocate Harshal Dessai for the Appellant in both the Appeals, whereas Respondent No. 1 in both the Appeals is represented by Advocate Arjun Naik along with Advocate Kavita Naik. The State of Goa is represented by the Additional Public Prosecutor, Mr. Gaurish Nagvenker. 3. In order to appreciate the arguments advanced before me, I must refer to the background facts. The parties to the proceedings are one, Mr. Pierre Antonio Lobo, the Complainant/the present Appellant, and Mr. Jose Remedios, A.A. Rodrigues, the Accused is the Respondent No. 1. By an Agreement for Management dated 18.06.2008, Pierre Antonio Lobo, [hereinafter referred to as 'Lobo'], allowed the Accused Jose Remedios Rodrigues [hereinafter referred to as 'Jose'] to manage his Restaurant styled as "Don Hill Beach Resort", situated at Candolim, Bardez, Goa, initiall....
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....s drawn on HDFC Bank Limited on 29.07.2010. Both the cheques could not be honoured and therefore, two demand notices were issued. In respect of the dishonour of cheque of Rs. 4 lakhs, a demand notice was sent on 18.07.2009 to the Accused, asking him to make the payment within 15 days of the receipt of the notice and this notice, according to the Complainant, is received by the Accused on 29.07.2009, but since the Accused failed to make the payment under the cheque amount, he filed a complaint under Section 138 of the N.I. Act before the JMFC, Mapusa, on 27.08.2009, which was numbered as Private Criminal Complaint No. 626/2009/B. On the cheque of Rs. 8 lakhs being dishonoured on ground of "funds insufficient", another legal notice was addressed to the Accused on 03.08.2010, informing that the cheque dated 28.04.2010 issued by him was dishonoured and calling upon him to make the payment within a period of 15 days. However, since no payment was received, a complaint was instituted before JMFC, Mapusa through Private Criminal Complaint No. 785/2010/F on 13.09.2010. 6. On the distinct cases being registered before the JMFC, Mapusa, the substance of accusation was conveyed to the A....
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....iting to the Drawer demanding the amount and failure of the Drawer to make the payment. Since it was held that each and every ingredient of the offence was proved by the Complainant, the Accused was sentenced for the offence punishable under Section 138 of the NIA Act. 9. As far as the judgment in Criminal Case No. 785/ 2010/F is concerned, involving the cheque in the sum of Rs. 8 lakhs, the Postman, Mr. Rajan Sawal, was examined as PW-4, who had deposed that he had delivered the envelope at the residence of the concerned party and obtained the signature of the party who had received the envelope on the A.D. card and exhibited the same at Exhibit-E. In cross examination, he admitted that the envelope was handed over to a girl, aged 15, and the relationship between the Accused and the girl was not proved and therefore, despite these circumstances, by making reference to Section 27 of the General Clauses Act, 1897 the Magistrate held that the Complainant has discharged the duty of sending the legal notice to the correct address of the Accused under certificate of posting, and if the Accused claims that he has not received the legal notice, it is for him to prove the non-service....
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....the Trial Court and setting aside the conviction have failed to take into consideration the presumption under Sections 113 and 139 of the N.I. Act read with Section 27 of the General Clauses Act and also under Section 114 of the Indian Evidence Act. He would submit that these presumptions were sought to be rebutted by merely putting questions to the Appellant in his cross-examination to the limited extent, and the incriminating circumstances were only explained under Section 313 of Cr.P.C., which received bare denials. He would submit that the controversy revolves around the legal notice with the A.D. card, which is signed by the Accused, and no specific defence is led by the Accused by entering into the witness box, rebutting the said case pleaded by the Complainant and proved by stepping in the witness box. According to him, the complaint containing the averments along with the acknowledgment A.D. receipt signed on 29.07.2009, in one case, and with the evidence of the Postman in another case, was sufficient to surpass the muster of Section 138(b) and 138(c), for the Complainant to maintain the said complaint under Section 138(a). 12. During the course of argument, since this a....
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....of any averments in the complaint to the effect that the accused had a role to play in the matter on non-receipt of legal notice; or that the accused deliberately avoided service of notice, the same could have been entertained keeping in view the decisions of this Court in D. Vinod Shivappa Vs. Nanda (2006) 6 SCC 456. He would rely upon the following observations in the said decision:- "13. According to Section 114 of the Act, read with illustration (f) thereunder, when it appears to the Court that the common course of business renders it probable that a thing would happen, the Court may draw presumption that the thing would have happened, unless there are circumstances in a particular case to show that the common course of business was not followed. Thus, Section 114 enables the Court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. Consequently, the court can presume that the common course of business has been followed in particular cases. When applied to communications sent by ....
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....cted. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the GC Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in K. Bhaskaran Vs. Sankaran Vaidhyan Balan (1999) 7 SCC 510, if the 'giving of notice' in the context of Clause (b) of the proviso was the same as the 'receipt of notice' a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act." 15. At the outset, it is necessary to reproduce Section 138 of the Negotiable Instruments Act, which also provide for the conditions pertaining to the notice to be given to the Drawer in the form of clause (b) and (c) of the proviso. The Section reads thus:- "138. Dishonour of cheque for insufficiency, etc., of funds in the account.- Where any cheque dra....
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.... giving notice in writing to the Drawer of the cheque, within 30 days of receipt of information that the Bank has returned the cheque unpaid, and the Drawer of such cheque on receipt of such notice fails to make the payment within a period of 15 days. In order to attract an offence under Section 138, it is necessary, that when the cheque is dishonored, a notice is addressed by the Complainant to the Accused asking him to make the payment under the cheque, and if the Drawer of the cheque fails to make the payment of the money within a period of 15 days from "receipt of the notice", an offence under Section 138 is attracted. It therefore becomes essential to determine whether the Drawer has failed to make the payment pursuant to the notice being received by him, as the complaint can be filed under Section 138, only upon such a contingency. 17. At this juncture, it is necessary for me to make a reference to Section 27 of the General Clauses Act, 1897 which is the provision covering the service by post, and the said provision reads thus:- "27. Meaning of service by post.- Where any [Central Act] or Regulation made after the commencement of this Act authorizes or requi....
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....ce, that would be considered to be a service upon the Defendant. The explanation appended to the said Rule state that a servant is not a member of the family within the meaning of the Rule. The relevant provision read thus:- "15. Where service may be on an adult member of defendant's family.- Where in a suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. Explanation-A servant is not a member of the family within the meaning of this rule." In absence of any evidence being brought on record that the girl was a member of the family of the Accused and in any case, since PW-4 has deposed that she was aged 15 years, the acknowledgment signed by her, is not a proof of the service being effected upon the Accused. 19. In the other Appeal i.e. Criminal Appeal No. 55 of 2014, the A.D. receipt has given the address as "J....