(1) HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE CRIMINAL REVISION NO.408 OF 2010 Prashant Mundra Versus. Satish Kumar Rathi For Applicant : Shri Rohit Mangal, Advocate. For respondent : None. O R D E R (Oral) (Passed on 1.12.2011) U.C. MAHESHWARI J. 1. The applicant/accused has preferred this revision being aggrieved by the judgment dated 25.3.2010 passed by VIIth Additional Sessions Judge (Fast Track Court) Ujjain, in Cr. Appeal No. 443/09, affirming the judgment dated 28.10.2009 passed by Judicial Magistrate First Class Tarana, in Criminal Case No. 49/07, convicting and sentencing the applicant for the offence under Section 138 of the Negotiable Instruments Act (In short 'the Act') for six months RI with a direction to pay the compensation Rs.1,15,000/- under Section 357 (3) of Cr.P.C. (In short 'the Code') to the respondent/complainant. 2. The facts giving rise to this revision in short are that the applicant herein after receiving the consideration of Rs. One lacs from the respondent/complainant, gave him a cheque of his account. The respondent in his turn within the validity period of such cheque deposited the same with his banker for it's collection, but the same was not encashed and returned to the respondent by his banker along with the memo dated 3.8.2007 having the endorsement that no sufficient fund is available in the account of the applicant. On which, a demand notice dated 4.8.2007, was sent by the respondent to the applicant through registered post. The same was returned back with the endorsement of various dates i.e. 6.8.2007, 7.8.2007, 8.8.2007 (2) and 9.8.2007 that inspite intimations, the adressee was not available at the time of delivery of the same. Inspite such notice when the payment of the cheque was not made then, within the prescribed period from the deemed service of the aforesaid registered notice, the impugned private complaint was filed by the respondent against the applicant to prosecute him under Section 138 of the Act. As per procedure provided under Sections 200 and 202 of Cr.P.C., after recording the preliminary statements of the respondent and his witnesses, the cognizance of the aforesaid offence was taken. After appearance of the applicant, it being summoned case, the plea was recorded and the trial was held. After recording the evidence, on appreciation of the same, the applicant was held guilty for the aforesaid offence in which he was punished with sentence along with a direction to pay the compensation as stated above. On filing the appeal, by affirming the findings of the trial Court, the same was dismissed, on which the applicant has come to this Court with this revision. 3. Shri Rohit Mangal, learned appearing counsel after taking me through the complaint along with the evidence led by the parties and exhibited papers from the record of the trial Court, so also the impugned judgments of the Courts below argued that the impugned complaint was entertained by the trial Court under the wrong premises while, in the lack of proper service of the demand notice as per provision of 138 (c) and 142(b) of the Act, no valid cause of action was available to the respondent to file the complaint against the applicant. In continuation, he said that after dishonouring the cheque, the demand notice Ex.P/3, as alleged was sent to the applicant through registered post, but it is apparent and undisputed fact that the same was not served on the applicant. Although as per record, it was returned back with the aforesaid endorsement that inspite intimation, the addressee was not available to receive the same. According to his submission, in the lack of personal service of such notice, it could not be deemed that the provision of (3) Section 142(b) of the Act has been duly complied with. Secondly, he argued that as per provision of Section 139 of the Act, the burden to prove the alleged consideration was not required by the applicant, has been wrongly shifted on the shoulder of the applicant while, the respondent was initially duty bound to prove that such cheque was given to him in consideration of some legal transaction. In this regard, he also said that in the lack of any account Book or any other admissible documents, it could not be assumed that the valid transaction was passed. According to him, the said cheque was given in connection of some B.C.(On asking the counsel, what is the meaning of B.C. he said that he did not have any instructions from the applicant in this respect so, he is unable to make any statement in this regard). Thirdly, he argued that the signature of the applicant on the disputed cheque has not been duly proved by any admissible evidence and contrary to prescribed procedure by holding the signature of the applicant on the disputed cheque, he has been convicted and punished under the wrong premises. Lastly, in alternative he argued that in case this Court comes to a conclusion that there is sufficient evidence and circumstance to affirm the impugned conviction of the applicant then, in that circumstances, taking into consideration that the applicant being first offender did not have any criminal antecedents in past and has already suffered the jail sentence between 25.3.2010 i.e. the date of the impugned judgment of the Appellate Court till 31.3.2010, the date of his release in compliance of order of this Court dated 29.3.2010, suspending his remaining jail sentence and grant of bail, by adopting a lenient view , his awarded jail sentence be reduced from the period of six months to the aforesaid period suffered by him by maintaining the amount of compensation under the discretion of the Court. He also placed his reliance on a report case of the apex Court in the matter of Shakti Travel & Tours vs. State of Bihar and another, reported in (2002) 9 SCC 415 and in the matter of Krishna Janardhan Bhat vs. Dattatraya G. Hegde, reported in (2008) 4 SCC 54 and (4) prayed to allow this revision accordingly. 4. No one has appeared on behalf of the respondent to defend the matter or to assist the Court in adjudication of this revision. 5. Having heard the applicant's counsel at length, keeping in view his arguments advanced, I have carefully gone through the record of the Courts below along with the impugned judgment as well as the aforesaid cited case laws and also the case laws mentioned by the appellate Court in it's judgment. 6. There is a concurrent findings of the Courts below based on appreciation of the evidence holding that the impugned cheque was given by the applicant to the respondent after receiving the consideration of Rs. one lacs. So far as the explanation of said consideration is concerned, on perusing the deposition of Satish Kumar Rathi (AW-1), in which he categorically stated that the impugned consideration was given to the applicant as loan for his business of Cold Drink. It is further stated by him that the said loan was given subject to the terms that within settled period, the applicant will return to him and for the purpose of security of such consideration, the impugned cheque was given. Although, in the cross- examination on behalf of the applicant the efforts to rebut such evidence was made on the basis of defence that the alleged cheque was given to the applicant in connection of some “B.C.” which was constituted by amongst the friends including the applicant as well as the respondent, but the factum of such “B.C.” or it's transaction inspite examining the various witnesses in the defence, has not been proved by the applicant. Even otherwise, unless the explanation of “B.C.” is on record, no inference could be drawn that such cheque was given in connection of some “B.C.” or loan transaction. In such a situation, the evidence led by the respondent explaining the nature of the transaction of the loan appears to be reasonable and in such premises, I am of the considered view that the Courts below have not committed any error in (5) holding that the disputed cheque was given by the applicant to the respondent after obtaining the valid consideration of it. So, in the aforesaid premises, the arguments advanced by the applicant's counsel that the alleged cheque was not given for any valid consideration, is hereby failed. 7. So far as the arguments advanced by the applicant's counsel that in the lack of service of demand notice issued under Section 138 (b) of the Act on the applicant personally, the complaint was not maintainable is concerned, it is apparent that after receiving the information of dishonouring the cheque by memo dated 3.8.2007 (Ex.P/2), a demand notice dated 4.8.2007 (Ex.P/3) was sent to the applicant on his correct address through postal receipt (Ex.P/ 4) and the returned envelop (Ex.P/5), is having the endorsement of the Postman that inspite intimations, the noticee was not available to receive the notice at the time of delivery. Concerning dates, are also mentioned on it by the postman. Such close envelop as per record was opened by the trial Court in which, the original notice (Ex/P/6) was found, and the same was marked. The averments of Ex.P/6 and Ex.P.3 are same. The acknowledgment due receipt of the unserved notice returned with the envelop is marked on the record as Ex.P.6 and in order to prove the address of the applicant, a document Ex.P./8 and Ex./P/9 are also proved on the record. According to the aforesaid endorsement of the postman, it has been proved beyond reasonable doubt and even otherwise with all probability that inspite intimations, the applicant was not made available himself to receive the notice so, the notice could not be served on him. In such premises, the provision of Section 27of the General Clause Act and Section 114(e) of the Evidence Act it could be assumed the applicant voluntarily avoided the service of the notice and in such premises, it shall be presumed that the notice was duly served on the applicant. 8. My aforesaid view is fully fortified by the decision of the Hon'ble apex Court in the matter of C.C. Alavi Haji vs. Palapetty Muhammed and anr. (6) reported in AIR 2007 SC (Supp) 1705 in which it was held as under:- “14. Section 27 gives rise to a presumption that service of notice has been effect when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that inspite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement “refused” or “not available in the house” or “house locked” or “shop closed” or “addressee not in station, “ due service has to be presumed. It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved. 15. In so far as the question of disclosure of necessary particulars with regard to the issue of notice in terms of proviso (b) of Section 138 of the Act, in order to enable the Court to draw presumption or inference either under Section 27 of the G.C. Act or Section 114 of the Evidence Act, is concerned, there is no material difference between the two provisions. In our opinion, therefore, when the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of Clause (b) of proviso to Section 138 of the Act stands complied with. It is needless to emphasise that the complaint must contain basic facts regarding the mode and manner of the issuance of notice to the drawer of the cheque. It is well settled that at the time of taking cognizance of the complaint under Section 138 of the Act, the Court is required to be prima facie satisfied that a case under the said Section is made out and the aforenoted (7) mandatory statutory procedural requirements have been complied with. It is 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 letter was never tendered or that the report of the postman was incorrect. In our opinion, this interpretation of the provision would effectuate the object and purpose for which proviso to Section 138 was enacted, namely, to avoid unnecessary hardship, to an honest drawer of a cheque and to vide him an opportunity to make amends”. 9. Inspite service of the demand notice as discussed above, within the prescribed period, the consideration of the cheque was not repaid by the applicant to the respondent and on the basis of such cause of action, the impugned complaint was rightly filed by the respondent under the Act. In such premises, the appellate Court has not committed any error in affirming the judgment of the trial Court. Hence, by affirming such findings of the appellate Court the objection taken on behalf of the applicant in this regard are hereby failed. 10. I would like to mention here that the case law in the matter of Shakti Travel & Tours (supra), decided by the Bench of two Hon'ble Judges cited on behalf of the applicant's in view of the aforesaid decision of the apex Court in the matter of C.C. Alavi Haji (supra) decided by the Bench of Hon'ble three Judges, is not helping to the applicant in the present case. Besides this, on going through the cited case of Shakti Travel & Tours (supra), it is apparent that no specific law has been laid down in such case. Only considering some peculiar fact of the specific case, it was decided only in three paras. So, in such premises also, such case law is not helping to the applicant. 11. Coming to consider the next question raised by the applicant's counsel (8) that the signature of the applicant on the disputed cheque has not been proved by cogent and reliable evidence. It is undisputed fact on record that the disputed cheque was issued from the cheque book of the applicant. Initially, the case was contested by the applicant on the defence that the cheque was not given in consideration of some loan but the same was given as security of some “B.C”. In such premises, it could be assumed that the cheque was signed by the applicant himself and not by any other person. Beside that, as per concurrent finding of the Court below on comparing such signature from the other available standard signatures of the applicant, the same has been found to be similar with the natural differences. It is also apparent fact that at any stage of the trial in order to prove such defence, no efforts were made on behalf of the applicant to get examine such cheque from handwriting expert. So, in such circumstances, the approach of the Courts below holding the impugned cheque was issued by the applicant with his own signature being in consonance with the record as well as the provision of Section 73 of the Evidence Act, could not be interfered at this stage under the revisional jurisdiction of this Court vested under Section 397 read with Section 401 of Cr.P.C. Hence, the argument of the applicant's counsel advanced in this regard is also failed. 12. In the aforesaid premises, I have not found any perversity, infirmity, illegality or anything against the propriety of law in the impugned judgments of the Courts below holding conviction against the applicant under the aforesaid Section. Consequently, this revision deserves to be dismissed. 13. At this stage, I would like to consider the alternate prayer of the applicant's counsel for reducing the jail sentence awarded by the Courts below. It appears from the record that the applicant as well as the respondent being businessman are belonging to the commercial community and the impugned transaction was also in connection of some loan transaction with respect of the business necessity of the applicant. So, in such premises, the (9) applicant does not appear to be a person involved in a criminal activities. Besides this, I am also apprised by the applicant's counsel that the sum of imposed compensation of Rs.1,15,000/- has been deposited by the applicant in two different installments Rs. 28750/- on 7.12.2009 through receipt no.2, of book no. 53873 and Rs. 86250/- on 31.3.2010 through receipt no.70 of book no.53873. In this regard, the photocopy of such receipts were also referred by the applicant's counsel, the same is taken on record. 14. In view of the aforesaid, I deem fit to reduce the awarded jail sentence of the applicant upto the period for which he has already undergone I.e. from the date of the impugned judgment of the appellate Court and till his release in compliance of the order of this Court for suspension of remaining jail sentence as stated above, but by maintaining the amount of compensation as imposed by the Courts below. 15. Therefore, by affirming the findings of the impugned judgment holding conviction against the applicant under Section 138 of the Act along with the imposed compensation of Rs.1,15,000/-, this revision is allowed in part and the jail sentence of the applicant awarded under such Section is hereby reduced from six months RI upto the period for which the applicant has already undergone as stated above. Till this extent, the impugned judgment of the appellate Court is modified while, the other findings of the same are hereby affirmed. The bail bond of the applicant are discharged. 16. Revision is allowed in part as indicated above. (U.C.MAHESHWARI) JUDGE pb (10)