1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL REVISION NO. 103/2010 (Bhimrao Pundlikrao Patil vs. Haridas Mahadeorao Meghe ) .................................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ..................................................................................................................................................................... Mr J R Kidiley, Advocate for applicant Mra. Anjali Joshi, Adv.for Respondent CORAM : A.P. BHANGALE, J. DATED : 6 th June, 2011. Heard counsel for the respective parties at length. By this application, the applicant prays for quashing and setting aside the impugned judgment and order dated 3rd April,2010 passed by learned 1st Ad-hoc Additional Sessions Judge, Wardha in Criminal Appeal No.33/2005 which arose from the judgment and order dated 13.5.2005 passed by learned Chief Judicial Magistrate Wardha in Summary Criminal Case No. 3754/2003. Facts in brief are that the applicant was working in Bharat Sanchar Nigam Limited (in short 'BSNL') Wardha as a Telephone Mechanic. The respondent had given a hand-loan in the sum of Rs. 65,000/- to the applicant. The applicant had issued a cheque bearing No.119003108400 dated 15.3.2003 2 drawn upon State Bank of India, Civil Lines Treasury Branch, Wardha for a sum of Rs. 65,000/-. The cheque was presented for encashment with the said Bank on 19.7.2003, which was returned with remarks “returned to drawer; with insufficient funds”. The demand notice dated 23.7.2003 was sent by the complainant calling upon the accused to pay the sum of Rs. 65,000/-. According to the complainant, notice was issued by the registered post A.D. which was duly served upon the applicant/ accused by the Postman on 24.7.2003 and thereafter on 25.7.2003; but the accused refused to accept the same. No reply was sent to the demand notice nor payment was made. Thus, cheque was dishonoured and remained unpaid despite demand notice which resulted in lodging the complaint before the learned trial Magistrate at Wardha, which came to be registered as Summary Criminal Case No.3754/2003. It appears that before the learned trial Magistrate the complainant led his evidence along with documents, such as, cheque intimation memo, notice, closed envelope and statement of loan but, in defence, the accused did not adduce any evidence. The learned trial Magistrate after considering the necessary ingredients of the offence punishable u/s. 138 of the Negotiable Instruments Act, ( in short “ the N I Act”) and facts and evidence on record, decided to convict the accused for offence punishable under section 138 of the N.I. Act and sentenced the accused to suffer rigorous imprisonment 3 for four months and to pay a fine in the sum of Rs. 75,000/-, in default of payment of fine, the accused was directed to suffer simple imprisonment for one month and 15 days. The trial Magistrate also ordered that out of the total fine amount a sum of Rs. 65,000/- be paid towards compensation to the complainant and a sum of Rs. 2,000/- be paid towards cost of the proceedings. The order dated 13.5.2005 passed by the CJM Wardha in Summary Cri.Case No.3754/2003 was challenged before the learned Sessions Judge, Wardha who was pleased to reduce the sentence while maintaining the conviction for offence punishable u/s 138 of the N.I. Act and the accused was sentenced to suffer S.I. for 15 days and fine in the sum of Rs. 75,000/- in default, to undergo further SI for 45 days. It is also noted that the accused was in jail from 13.5.20005 to 18.5.2005 for which set off was ordered for the period of sentence already undergone. It is also stated by learned Advocate for the applicant before this Court which appears noted by this Court in the order dated 5th October 2010, that applicant had deposited fine of Rs.75,000/- on 18.5.2005 and he has already undergone the sentence awarded. At the hearing of this Revision Application, the learned Advocate for the applicant contended that in fact, the demand notice dated 23.7.2003 which was sent 4 by RPAD, was not duly served. The postmen concerned was not examined by the complainant. However, it is not disputed that on the same address which was mentioned on the cover of demand notice dated 23.7.2003, the complaint proceedings were served although by Humdast. It is also not in dispute that the accused and complainant were serving in the same office and it is claimed by the complainant that the demand notice was sent at the office address of the accused. The complainant also claimed that no reply to the demand notice was sent. Learned Advocate for the applicant placed reliance upon the ruling in Sridhar MA vs. Metaaaly N Steel Corporation reported in (2000) 1 SCC 397 to pray for benefit of doubt in respect of service of the demand notice upon the accused since the Postman was not examined in the proceedings by the complainant and there was no due service within the meaning of Sec. 27 of the General Clauses Act, particularly when the complainant had chosen to send demand notice on the employer's address of the accused. Learned counsel for the respondent,on the other hand, supported the impugned judgments recorded by the trial Magistrate as well as Ad-hoc Addl. Sessions Judge and sought to submit that ruling in Sridhar MA ( supra) may be distinguished as applicant herein had already undergone substantive sentence awarded against 5 him and,therefore, need not be acquitted of the offence punishable u/s 138 of the N.I. Act since the sentence of imprisonment is already undergone and the amount which he was required to pay in the sum of Rs. 75,000/- was already deposited by him. I have considered the rival contentions and the ruling relied upon. It is true that in a given case presumption of deemed service is not a matter of course. The deemed service is to be accepted in the light of the facts of each case. It is only when doubt arises regarding service of the notice upon the accused he may claim benefit thereon. In the facts of the present case, it appears that both the complainant and the accused were serving in the same office of BSNL and the complainant was also served by Humdast on the same address, upon the accused which was mentioned in the demand notice. That being so, in the facts and circumstances of the present case, the accused cannot claim benefit of doubt as was claimed in the ruling of Sridhar M.A.. Since the accused had already undergone substantive sentence of imprisonment and also deposited sum of Rs.75,000/- I think the entire amount with interest, if any, shall be paid to the complainant towards compensation of the cost and nothing survives in this proceedings considering the facts and circumstances of the case. Therefore, no interference is required in the 6 impugned judgments and orders except to the effect that the amount deposited shall be received by the complainant with interest, if any, towards compensation and cost. The Revision stands disposed of accordingly. JUDGE Sahare