*HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU +Crl.A. No.2141 of 2004 %23-12-2011 #A.Brahmananda Reddy. …. Appellant Vs. $ The State of A.P., rep by its Public Prosecutor, High Court of A.P., Hyderabad and another. …. Respondents !Counsel for the Appellant: Sri Nimmagadda Satyanarayana Counsel for the Respondents: Addl. Public Prosecutor <Gist : >Head Note: ? Cases referred: 1. AIR 2001 Supreme Court 2825 HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2141 of 2004 JUDGMENT: The complainant filed this appeal questioning order of acquittal of the accused recorded by the lower Court of the offence under Section 138 of the Negotiable Instruments Act (in short, the Act). The complainant/PW.1 filed the complaint in the lower Court on the ground that Ex.P.1 cheque for Rs.1,30,000/- drawn by the accused in his favour was dishonoured as per Exs.P.2 and P.3 memos by the banker for want of ‘sufficient funds’ in the account of the accused. After issuing requisite notice under Ex.P.4 by way of courier service, the complainant filed the complaint in the lower Court. The lower Court recorded acquittal on four grounds namely 1) that Ex.P.1 cheque was not drawn towards discharge of any debt or liability, 2) that Ex.P.1 cheque was drawn by the accused as proprietor of Srividya Suppliers and Contractors and on account of said proprietary concern and therefore the complaint should have been filed impleading the proprietary concern as one of the accused, 3) that there is no proof of service of notice on the accused prior to filing of the complaint, and 4) that the complaint is barred by limitation. It is contended by the appellant’s counsel that all the above four grounds on which the lower Court disallowed the complaint are untenable and highly unreasonable. Notice of this appeal was sent to the 2nd respondent/accused and it was refused. 2. The lower Court came to the conclusion that even if the notice was served on the accused on 11.7.1998, the complaint should have been filed by 25.08.1998 (ie.) within 45 days thereof and instead, the complaint was instituted on the lower Court on 26.08.1998 and is therefore barred by limitation. Even though it is contended before lower Court that 25.08.1998 was a public holiday, the lower Court observed that no evidence was produced to show that 25.08.1998 was holiday. For noticing whether 25.08.1998 is a holiday or not, no party need to produce any oral or documentary evidence. The lower Court should have noted whether it was a holiday or not by looking at Calendar of the year 1998 for Subordinate Courts. Calendar of the year 1998 for Subordinate Courts notified by this High Court shows that 25.08.1998 was declared as holiday as it was ‘Vinayaka Chaturdhi’ day. The lower Court should have taken judicial notice of the said fact. Therefore, in any event, the complaint is not barred by limitation. 3. A proprietary concern is no juristic person in the eye of law. It is only embodiment of the proprietor himself. In the case of a proprietary concern, Section 141 of the Act has no application, since it is no association of individuals in plurality. It is an individual concern by itself. It has no identity or entity in law apart from the proprietor himself. Therefore, comment of the lower Court that the complaint is bad for non-joinder of proprietary concern of the accused is unwarranted by law. Assuming for a moment for the sake of argument that Section 141 of the Act has any application to any proprietary concern, even then as per Sub-Section (1) thereof, not only the proprietary concern, but also the proprietor is individually and independently liable for the offence under Section 138 of the Act. The cheque Ex.P.1 was no doubt drawn by the accused on account of his proprietary concern. Since the proprietary concern has no independent identity, law does not require a proprietary concern to be added as a party to any case in addition to the proprietor thereof. 4. To prove service of notice Ex.P.4 by courier service, the complainant apart from filing Ex.P.5 courier receipt, examined PW.4 who is running the said courier service. It is pointed out by the lower Court that PW.4 in cross- examination deposed that he has no knowledge whether notice was received by the accused to whom it was addressed or whether it was returned unserved. It is pointed out by the appellant’s counsel that when the complainant filed Crl.M.P.No.1724 of 2004 in the lower Court for permission to examine PW.4 as his witness by citing him as additional witness under Section 311 Cr.P.C., the accused filed counter through his counsel to the following fact: “There is no necessity to examine the professional courier service as the accused did not question the validity of the service and denial of notice”. When the accused did not deny service of notice on him, it is not for the lower Court to make further probe into it and to comment on cross-examination of PW.4 in this regard. Section 27 of the General Clauses Act has no application to a case of notice under Section 138 of the Act since the latter provision did not contemplate service of notice ‘by post’. So, it is open for the complainant to send notice for service by adopting any mode or means. In this case the complainant has preferred to send the notice to the accused through professional courier service and it is valid service of notice under Section 138 of the Act. Apart from the above evidence with regard to service of notice through courier service on the accused, the complainant filed Ex.P.10 letter written by the accused after receipt of notice. In Ex.P.10 the accused admitted receipt of notice and also PW.2 who is brother of PW.1 meeting him to request for payment of dishonoured cheque amount, when the accused pleaded for some time for payment. The lower Court commented that Ex.P.10 was denied by the accused and that Ex.P.10 might have been obtained by force. It is nobody’s case that Ex.P.10 was obtained by force. The accused did not examine himself to deny writing of Ex.P.10 letter and to speak to the circumstances in which he wrote Ex.P.10 letter to the complainant. On the other hand, PW.1 as well as PW.2 proved truth of Ex.P.10 letter. The above evidence on record undoubtedly proved that there was valid service of notice on the accused about dishonour of the cheque. 5. The complainant as PW.1 deposed about purchase of casuarina wood by the accused from him and issuing Ex.P.1 cheque towards value thereof. PW.1 is a Contractor for supply of soft wood to Sirpur kagajnagar Paper Mills. The lower Court placed reliance on a certificate said to have been issued by the said Paper Mill Authorities, during examination of the accused under Section 313 Cr.P.C. Answers given by the accused in examination under Section 313 Cr.P.C. and documents filed by the accused during his examination under Section 313 Cr.P.C. are no evidence at all on behalf of the accused. They remain only as pleas of the accused, which the accused has to substantiate by leading necessary oral or documentary evidence. Of course, the said pleas taken by the accused during his examination under Section 313 Cr.P.C. have to be borne in mind by the Court while considering and assessing prosecution/complainant’s evidence. The said documents cannot be given exhibit numbers without formal proof. In case the accused wants to rely upon those documents, then the accused has to prove those documents by formally examining the persons relating to those documents. Leading of formal proof in support of the documents relied upon by the accused cannot be dispensed with, as the provisions of Indian Evidence Act are equally applicable for proof of documents filed by the prosecution/complaint as well as for proof of documents relied upon by the accused. Without there being formal proof as contemplated under the provisions of Indian Evidence Act, no document filed by the accused in his examination under Section 313 Cr.P.C. can be either marked as an exhibit nor can be relied upon by the Court as if it is a proved document, unless such document requires no formal proof under the Indian Evidence Act. In the case on hand, the lower Court should not have relied upon certificate issued by Paper Mill Authorities. A certificate being living person’s statement is hit by Section 32 of the Evidence Act. It is for the person who relies upon the certificate to examine the said person who issued the said certificate to reiterate contents of the certificate in his oral evidence before the trial Court. Without the said exercise, the lower Court should not have placed reliance on the certificate straight away and the said procedure is contrary to law. Simply because it is certified in the said certificate that the complainant supplied wood to that paper mill from 01.10.1994 to 31.03.2003, it cannot be presumed that the accused did not purchase any casuarina wood from the complainant and did not supply the same to the paper Mill after 31.03.2003. It is not the defence version that the debt or liability for discharge of which Ex.A.1 cheque was drawn by the accused, was barred by limitation. The lower Court went on making out case after case for the accused even though there was neither specific plea nor evidence in support of the same. 6. It is pointed out by the lower Court that in Ex.P.8 letter written in note book and in Ex.P.10 written by the accused, the accused stated that he purchased wood for Rs.85,463/- and whereas Ex.P.1 cheque was drawn for Rs.1,30,000/-. It is for the accused to explain the figures in Exs.P.1 andP.10. The lower Court failed to see that apart from presumption under Section 118 of the Act for consideration, there is another presumption under Section 139 of the Act to the effect that the cheque was drawn for the purpose of discharging a debt or liability. The lower Court pointed out that the presumption under Section 118 of the Act has no application to this case since the accused denied his signature in Ex.P.1. The lower Court failed to notice that the accused did not examine himself as a witness to specifically deny his signature in Ex.P.1 cheque. Apart from that, the cheque was not dishonoured by the banker on the ground of signature of the accused not tallying. When the banker did not dispute signature of the accused on the cheque and when the accused did not specifically deny his signature in Ex.P.1 by entering into witness box/witness chair in the trial Court, it is not for the trial Court to find for the accused that execution of Ex.P.1 cheque was denied by the accused and therefore the presumption under Section 118 of the Act has no application to this case. No doubt, the presumption under Section 118 of the Act as well as the presumption under Section 139 of the Act are rebuttable presumptions. When the accused did not deny consideration and did not deny existence of debt or liability by examining himself as witness during trial, it cannot be said that the said presumptions stood rebutted (see K.N.Beena v Muniyappan[1] of the Supreme Court). The lower Court failed to notice and consider effect of the presumption under Section 139 of the Act at all. In these circumstances, this Court has no hesitation to find that finding of the lower Court that Ex.P.1 is not supported by any debt or liability, is highly unreasonable, manifestly unjust and touches the border of perversity and therefore it cannot be allowed to stand. 7. In view of the above discussion, I do not agree with reasoning as well as conclusion of the lower Court I find that the accused/respondent is guilty of the offence under Section 138 of the Act. 8. In the result, the appeal is allowed setting aside judgment of the lower Court and convicting the accused/respondent for the offence under Section 138 of the Act and sentencing him to simple imprisonment for six months and fine of Rs.1,35,000/-, out of which Rs.1,30,000/- shall be paid to the complainant/appellant towards compensation. _______________________ SAMUDRALA GOVINDARAJULU,J Dt.23rd December, 2011 Note: L.R.copy to be marked B/o PNV [1] AIR 2001 Supreme Court 2825)