Monday, 30 January 2017

Whether burden of proof will be on accused to prove that notice was not received by him in case of dishonour of cheque?

 In my considered view, in the present case, it is not as if no
legal notice was issued by the complainant to the accused. The legal
notice was duly issued and as per report on the receipt, the same could
not be served upon him because the accused was not available despite
the postal authorities attempting to serve him on more than one
occasions. Incidentally, a perusal of the statement made by the accused

under Section 313 Cr. P.C. will demonstrate that he has admitted the
factum of legal notice having been issued by the complainant to him.
Even otherwise, had his conduct been bonafide, then after the complaint
was filed in the Court by the complainant under Section 138 of the
Negotiable Instruments Act, 1881, nothing stopped the accused from
depositing the amount in issue before the learned trial Court. Further, in
my considered view, the legal position is that the drawer of the cheque
makes himself liable for prosecution under Section 138 of the Negotiable
Instruments Act, 1881 in case he fails to make the payment within fifteen
days of the receipt of the notice given to him by the drawee. Thus, the
accrual of cause of action is in fact the failure on the part of the drawer of
the cheque to pay the amount after receipt of the notice which gives rise
to the cause of action to the complainant to file complaint within the
statutory period prescribed under the Negotiable Instruments Act, 1881.
However, there may be unscrupulous persons/drawers who may manage
to get incorrect postal endorsements to defeat the claim of the drawee.
The moot issue is as to whether in such circumstances a drawee will be
without remedy or not. In my considered view, such like situation is duly
covered by the principles incorporated in Section 27 of the General
Clauses Act, which apply to a notice sent by post and it would be for the
drawer to prove that it was not really served and that he was not
responsible for such non-service.
18. In V. Raja Kumari Vs. P. Subbarama Naidu and another
(2004) 8 Supreme Court Cases 774 dealing with the case where notice
cannot be served on account of the fact that door of the house of the

drawer was found locked, the Hon’ble Apex Court has held that the
principles incorporated in Section 27 of the General Clauses Act will
apply in such like situation and it will be for the drawer to prove that he
was not really served and he was not responsible for such service.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No.: 30 of 2016

Date of Decision: 27.05.2016

Sandeep Walia
Vs.
Sanjeev Dulta 
Coram:
 Mr. Justice Ajay Mohan Goel, Judge
Citation: 2016 ALLMR(CRI)JOURNAL580


This Revision Petition has been filed against judgment dated
29.10.2015 passed by the Court of learned Additional Sessions Judge-1,
Shimla in Criminal Appeal No. 1-S/10 of 2015 vide which, the learned
Appellate Court has upheld the judgment dated 13.05.2014 passed by
learned Judicial Magistrate 1st Class, Jubbal, District Shimla in Case No.
1/3 of 2012, whereby the present petitioner has been convicted and
sentenced for the commission of offence punishable under Section 138 of
the Negotiable Instruments Act, 1881.
2. The case of the complainant was that he and accused were
good friends and had good relations with each other. Accused approached
the complainant in January, 2011 and hired a Tipper from him on


monthly rental charges of `65,000/- per month. The truck was
accordingly handed over by the complainant to accused on rent so agreed
between him and the accused. In order to discharge his liability as was
due towards the complainant, the accused issued advance post dated
chaques, i.e., cheque Nos. 848691 dated 18.06.2011, 848690 dated
18.07.2011, 848692 dated 18.08.2011 and 848693 dated 18.09.2011,
each amounting `65,000/-, which were drawn upon the Punjab National
Bank, Nahan Branch, District Sirmaur. When the said amount became
due from the accused to the complainant as a result of the accused plying
the Tipper which was hired by him, he presented the said cheques in his
Bank, i.e. H.P. State Co-operative Bank, Jubbal Branch for the collection
of the same. However, these cheques of the complainant were
dishonoured due to insufficient funds. Thereafter, the complainant issued
a legal notice to the accused dated 24.11.2011 on his last known
address. Despite issuance of the said legal notice, the accused failed to
make the payment of the dishonoured cheques.
3. After recording the preliminary evidence, the learned trial
Court took cognizance of the offence and notices were issued to the
accused. After procuring his attendance, notice of accusation was put to
the accused under Section 138 of the Negotiable Instruments Act, 1881,
to which he pleaded not guilty and claimed trial.
4. In order to prove its case, the complainant examined three
witnesses and the accused did not examine any witness.
5. CW-1 Rishi Sharma, Clerk, Punjab National Bank, Nahan
Branch deposed that the cheques in issue were presented for honouring

in Punjab National Bank, Nahan Branch, which were dishonoured on
account of insufficient funds. Similarly, CW-2 Inder Singh Mokta,
Assistant of H.P. Co-operative Bank, Jubbbal Branch has deposed that
after dishonour of the cheques, subject matter of the present case, the
said information was supplied to the complainant. Complainant entered
the witness box as CW-3 and he reiterated his complaint. In his crossexamination,
he stated that no payments were made to him by the
accused in cash. He further stated that the accused had made three
payments to him, i.e. an amount of `65,000/-, `58,000/- and `65,000/-
and all these three payments were made by way of cheques. He further
stated in his cross-examination that his Tipper remained with the
accused on rent for a period of eight months. He has also stated that an
amount of `2,60,000/- was due towards him from the accused and he
had presented all the cheques on the asking of the accused. He denied
the suggestion that he had misused the cheques or that he had received
the payments.
6. Before proceeding further, it is relevant to refer to the
statement of accused made under Section 313 of the Code of Criminal
Procedure. A specific question was put to the accused that it has come in
the evidence of the complainant that the complainant got issued a legal
notice dated 24.11.2011 Ex. CW1/H upon the accused asking him to
make the payments of the cheques amount and despite this, the
payments were not made. His answer was “Yes, but total amount which
was due was about `90-95,000/-, which he was willing to pay at that
time also”. In other words, the factum of issuance of legal notice to him

by the complainant has not been denied by him nor he has mentioned
that he had no knowledge of the said legal notice and the same was never
served upon him.
7. On the basis of the material placed on record by the
complainant before the learned trial Court, the said Court vide its
judgment dated 13th May, 2014 came to the conclusion that on the basis
of the evidence and in view of the response of accused during recording of
his statement under Section 313 Cr. P.C., the accused had nothing
substantial to deny the case of the complainant and accordingly, learned
trial Court convicted the accused for commission of offence punishable
under Section 138 of the Negotiable Instruments Act and imposed upon
him the sentence of undergoing simple imprisonment for a period of six
months for the commission of above offence and also directed him to pay
compensation of `3,50,000/-.
8. The said judgment was challenged by the accused by way of
an appeal before the learned Appellate Court. The learned Appellate Court
also concluded that the accused had failed to demonstrate on record that
he had paid the amount which was due from him towards the
complainant and only `90-95,000/- remained to be paid. It further
concluded that the accused had failed to convince that the cheques in
question in fact were issued as security and that the same had been
misused by the complainant. It further held that the complainant was
able to prove that an amount of `2,60,000/- was due from the accused
towards him and keeping in view the fact that the cheques by the
accused to liquidate the said amount were dishonoured on the ground of

insufficient funds, the complainant had successfully proved its case and
there was no illegality in the judgment of conviction and order of sentence
passed by the learned trial Court. Feeling aggrieved by the said two
judgments, the petitioner has filed the present revision petition.
9. Mr. Dinesh Bhanot, learned counsel appearing for the
petitioner has argued that the judgments passed by the learned Courts
below were perverse and not sustainable in the eyes of law. According to
him, the complainant had miserably failed to prove on record that any
amount was due to him from the accused in discharge of which, the
cheques in question were issued in favour of the complainant by the
accused. Mr. Bhanot argued that the cheques were lying as security with
the complainant who has misused the same. He further argued that both
the learned Courts below had erred in convicting the accused because
they had failed to appreciate that in the present case, no legal notice, as
is statutory requirement of the Negotiable Instruments Act was ever
served upon the accused. Thus, according to him, this major infirmity in
the case of the complainant had been ignored by both the Courts below
and the judgments of conviction as well as sentence imposed upon the
accused are thus liable to be set aside on this account alone.
10. Mr. Anil Chauhan, learned counsel for the respondent, on
the other hand, has argued that there is no merit in the present writ
petition and the same is liable to be dismissed outrightly. He has
contended that both the Courts below have rightly come to the conclusion
that the petitioner had committed the offence under Section 138 of the
Negotiable Instruments Act. He further argued that the cheques which

were issued by the accused to the complainant were issued in order to
discharge his liability as the accused owed to the complainant the said
amount, which was outstanding towards the rent of the Tipper which had
been hired by the accused from the complainant. He has further argued
that there is no misuse of any cheque as has been alleged by the accused
nor the cheques were issued by the accused as security as alleged.
Further, he submitted that the complainant had issued the legal notice
as is the requirement under the law and the factum of the legal notice
having been issued in fact had been admitted by the accused in his
statement under Section 313 of the Code of Criminal Procedure and,
thus, there was no infirmity in the case of the complainant as has been
alleged. Accordingly, he prayed for the dismissal of the present revision
petition.
11. I have heard the learned counsel for the parties and also
gone through the records of the case.
12. It is pertinent to mention that the accused has not been able
to substantiate his defence by bringing on record any cogent material to
the effect that the cheques in dispute were actually issued by him to the
complainant as security. Similarly, he has not denied the factum of
having hired the Tipper from the complainant on monthly rental charges
of `65,000/- per month. In fact, his case is that he has paid some
amount to the complainant in this regard and further according to him,
only an amount of `90-95,000/- was outstanding. Thus, he has admitted
that he owned money to the complainant in lieu of payment of rent of the
Tipper which he had hired from the complainant. In this view of the

matter, as the accused has not been able to substantiate that the said
cheques were issued as security, then the only conclusion which can be
prudently drawn is that the cheques were in fact issued in the discharge
of the liability which the accused owed to the complainant, especially
keeping in view the provisions of Section 139 of the Negotiable
Instruments Act, 1881. Further, the stand of the accused that his
cheques have been misused by the complainant is nullified from his own
acts because the accused has not filed any case or complaint against
present respondent to the effect that cheques issued as security by him to
the complainant have been misused by him.
13. Learned counsel appearing for the petitioner was specifically
put this question by this Court as to whether any complaint etc. had
been lodged by the accused about the misuse of his cheques, to which
the learned counsel for the petitioner fairly submitted that no such
complaint etc. has been lodged.
14. From the above discussion, the only conclusion which can be
drawn is that the cheques were issued by the accused in the discharge of
his liability and when the same were presented by the complainant in
the Bank, the same were dishonoured on account of insufficient funds.
According to me, the findings which had been returned in this regard by
both the Courts below are correct and based on appreciation of material
placed on record by the complainant and there is no infirmity or
perversity with the said findings returned by the learned Courts below.
15. Now coming to the issue of legal notice which had been
issued by the complainant to the accused. The contention of the learned

counsel for the petitioner is that the so called legal notice issued by the
complainant was in fact never served upon the accused. According to
him, it is demonstrable from the records itself that this notice was
actually never served upon the accused. This most important aspect of
the matter has not been appreciated by the learned Courts below.
According to the learned counsel for the petitioner, non-service of the said
notice upon the accused was fatal and accordingly, the present petition is
liable to be allowed on this account alone by setting aside the order of
conviction passed against the accused.
16. On the other hand, learned counsel for the respondent has
submitted that the legal notice was duly sent by the complainant to the
accused. Further, according to him, a perusal of relevant exhibit, i.e. Ex.
CW-1/J will demonstrate that it is mentioned in the same against
remarks dated 5th December, 2011 that “bar bar jane per nahi milta
wapis”. This coupled with the earlier noting of dated 29.11.2011, which is
to the effect that “bataya gaya hai ke prapatkarta kahi baher gaya hai”
are conclusive proof of the fact that the accused was aware about the
legal notice issued to him by the complainant and he was avoiding and
evading its service intentionally.
17. In my considered view, in the present case, it is not as if no
legal notice was issued by the complainant to the accused. The legal
notice was duly issued and as per report on the receipt, the same could
not be served upon him because the accused was not available despite
the postal authorities attempting to serve him on more than one
occasions. Incidentally, a perusal of the statement made by the accused

under Section 313 Cr. P.C. will demonstrate that he has admitted the
factum of legal notice having been issued by the complainant to him.
Even otherwise, had his conduct been bonafide, then after the complaint
was filed in the Court by the complainant under Section 138 of the
Negotiable Instruments Act, 1881, nothing stopped the accused from
depositing the amount in issue before the learned trial Court. Further, in
my considered view, the legal position is that the drawer of the cheque
makes himself liable for prosecution under Section 138 of the Negotiable
Instruments Act, 1881 in case he fails to make the payment within fifteen
days of the receipt of the notice given to him by the drawee. Thus, the
accrual of cause of action is in fact the failure on the part of the drawer of
the cheque to pay the amount after receipt of the notice which gives rise
to the cause of action to the complainant to file complaint within the
statutory period prescribed under the Negotiable Instruments Act, 1881.
However, there may be unscrupulous persons/drawers who may manage
to get incorrect postal endorsements to defeat the claim of the drawee.
The moot issue is as to whether in such circumstances a drawee will be
without remedy or not. In my considered view, such like situation is duly
covered by the principles incorporated in Section 27 of the General
Clauses Act, which apply to a notice sent by post and it would be for the
drawer to prove that it was not really served and that he was not
responsible for such non-service.
18. In V. Raja Kumari Vs. P. Subbarama Naidu and another
(2004) 8 Supreme Court Cases 774 dealing with the case where notice
cannot be served on account of the fact that door of the house of the

drawer was found locked, the Hon’ble Apex Court has held that the
principles incorporated in Section 27 of the General Clauses Act will
apply in such like situation and it will be for the drawer to prove that he
was not really served and he was not responsible for such service.
19. When we apply these principles to the facts of the present
case, the only conclusion which can be drawn is that whereas the
complainant has duly sent the legal notice to the accused, the service of
the same was avoided and evaded by the accused. Further, the accused
himself has admitted that the legal notice was issued to him which is
evident from his statement made under Section 313 of the Code of
Criminal Procedure. Therefore, in the peculiar facts of the present case,
the legal notice is deemed to have been served upon the complainant,
who admittedly had knowledge of the same and accordingly, this
contention of the learned counsel for the petitioner is also without any
merit.
20. Therefore, there is no infirmity with the judgments passed by
the learned Courts below. It cannot be said that any material particular
has been overlooked either by the learned trial Court or by the learned
Appellate Court. There is no perversity in the findings arrived at by the
learned Courts below. It is well settled law that the jurisdiction of High
Court in revision is severely restricted and it cannot embark upon reappreciation
of evidence. The High Court in revision cannot absence or
error on a point of law, re-appreciate evidence and reverse a finding of
law.

21. It has been further held by the Hon’ble Supreme Court that
the object of the revisional jurisdiction was to confer power upon superior
criminal Courts a kind of paternal or supervisory jurisdiction in order to
correct miscarriage of justice arising from misconception of law,
irregularity of procedure, neglect of proper precaution or apparent
harshness of treatment which has resulted on the one hand, or on the
other hand in some undeserved hardship to individuals.
22. Though the power of this Court is as wide as the power of the
Appellate Court, yet it will not hear the revision as an appeal and
reappraise the evidence and will interfere only in exceptional cases to
prevent flagrant miscarriage of justice. Revisional jurisdiction cannot be
exercised by this Court to substitute its own view with that of the learned
lower Court on a question of fact. Unless the finding of the Court below is
shown to be perverse or untenable in law or is based on irrelevant
evidence or ignoring relevant evidence, it is impermissible to interfere
with the order of the learned Court below in revisional jurisdiction. This
Court has held in Jaswant Rai Vs. State of H.P., 2000 Cr. L.J. 1970
(1971) (HP) that though the revisional powers of the High Court are very
wide, but are purely discretionary and should be exercised only in rare
cases to prevent miscarriage of justice.
23. Thus it can be safely inferred that this Court has to exercise
its revisional powers sparingly. Though, this court is not required to act
as a Court of appeal, however, at the same time, it is the duty of the
Court to correct manifest illegality resulting in gross miscarriage of

justice. However, I do not find any manifest illegality with the judgments
passed by the learned Courts below in the present case.
24. As already held above, there is no perversity in the judgments
passed by the learned Courts below. These judgments have been passed
by appreciating all the material on record and the judgments are neither
cryptic nor it can be said that the conclusions arrived at are not borne
out from the material placed on record. Thus, the revision sans merit and
the same is dismissed.
(Ajay Mohan Goel)
Judge
May 27, 2016
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