THE HON’BLE SRI JUSTICE C. PRAVEEN KUMAR CRIMINAL APPEAL No.1306 OF 2006 Date: 04.07.2014 Between: M. Sampath Kumar … Appellant And 1. P. Babul Reddy 2. State of A.P., rep. by Public Prosecutor, High Court of A.P., Hyderabad. … Respondents THE HON’BLE SRI JUSTICE C. PRAVEEN KUMAR CRIMINAL APPEAL No.1306 OF 2006 JUDGMENT: The present appeal is filed under Section 378 (4) of Cr.P.C. challenging the judgment dated 22.6.2006 passed in Criminal Appeal No.82 of 2005 on the file of V-Additional Sessions Judge, Kurnool at Nandyal. Heard learned counsel for the appellant and perused the material on record. The facts in issue are as under: The appellant/complainant is the owner of Petrol pump situated in R.S. Road, Nandyal. The complainant used to supply petrol and diesel on credit basis to the 1st respondent/accused on different dates, thereby the accused fell due a sum of Rs.2,32,000/-. In discharge of the said debt, the accused issued a post-dated cheque bearing No.753044, dated 15.01.2002 for Rs.1,00,000/- (Rupees One lakh only) in favour of the appellant/complainant. The said cheque when presented on 12.12.2002 for collection was returned on 13.12.2002 for the reason ‘Account closed’. Intimation of dishonour was received by the appellant/complainant on 14.12.2002. Then notice came to be issued on 18.12.2002 by registered post with acknowledgment due calling upon the accused to pay the amount covered under the cheque. Though notice sent by certificate of posting, was received by the accused, but the notice sent through registered post with acknowledgment due was returned unserved with an endorsement “7 days absent”. Another notice sent by registered post to the office address of the accused was also returned unserved on 06.01.2003 with an endorsement ‘no such addressee’. Therefore, having no other go the complainant filed a private complaint against the accused for an offence punishable under Section 138 of Negotiable Instruments Act. After recording the sworn statement of the complainant, the case was taken on file for an offence punishable under Section 138 of Negotiable Instruments Act and a notice was issued to the accused. On appearance, the accused was examined under Section 251 of Cr.P.C. for which he pleaded not guilty and claimed to be tried. In support of his case, P.Ws.1 to 3 were examined and Exs.P1 to P13 documents were marked. After considering the material available on record, the trial Court found that the accused guilty for an offence punishable under Section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.5,000/- (Rupees Five thousand only). Challenging the same, the accused preferred Criminal Appeal No.82 of 2005 before the V-Additional Sessions Judge, Kurnool at Nandyal. By its judgment dated 22.6.2006, the appellate Court allowed the appeal and acquitted the accused. Challenging the same, the present appeal is filed by the appellant/complainant. The grounds of appeal filed along with appeal would show that the finding of the Sessions Court that notice sent through certificate of posting was served, but the notice sent through RPAD was not served on the accused is incorrect. It is stated that the notice sent to the accused was returned unserved on 2.1.2003. Thereafter complaint was filed on 17.2.2003 which was well within time prescribed under Section 138 of Negotiable Instruments Act. It is further stated that the notice sent under certificate of posting was not returned, therefore it is to be presumed that the said notice which was issued on 21.12.2002 should be presumed to have been served within few days. It is thus stated that the findings of the lower appellate court are incorrect and the same needs to be interfered with. Before proceeding further, it will be relevant to extract Section 142 of Negotiable Instruments Act which is as under: “Section 142. Cognizance of offences:- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974):- (a) no court shall take cognizance of any offence punishable under Section 138 except upon a complaint in writing, made by the payee or, as the case may be, the holder in due course of the cheque: (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138. Provided that the cognizance of a complaint may be taken by the court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period. (c) No Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class shall try any offence punishable under Section 138.” Prior to the amendment, the proviso to Section 142 (b) was not there. Proviso to clause (b) of Section 142 was added by Section 9 of Act 55 of 2002 which came into force w.e.f. 8.12.2002. Section 142 (b) stipulates that a complaint has to be made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138 of the Negotiable Instruments Act. Clause (c) of the proviso to Section 138 of Negotiable Instruments Act reads as under: “S. 138 (c). the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.” A combined reading of clause (c) of the proviso to Section 138 and clause (b) of Section 142 of the Negotiable Instruments Act show that a complaint must be filed within one month from the date of receipt of statutory notice as envisaged in clause (b) of proviso to Section 138 of Negotiable Instruments Act. Clause (b) of proviso to Section 138 lays down that the payee of cheque shall issue a notice in writing to the drawer of the cheque within 15 days from 14.12.2002 prior to amendment and within 30 days from 14.12.2002 after amendment. It does not prescribe the mode in which the notice has to be sent to the drawer of the cheque by the payee. Therefore, it is left open to the payee of the cheque to choose any one of the recognized modes of sending notice. In the case on hand, it is clear from the averments in the complaint and evidence of P.W.1 that notice sent by certificate of posting was received by the accused. Of course, the complaint is silent as to the date on which the said notice sent by certificate of posting was received, but normal practice is that when notice is sent by certificate of posting it is presumed that the same would be delivered to the addressee within few days from the date of its posting. The said view is fortified by the judgment of this Court reported in M/s. C.E.I. CONSULTANCY, REP. BY C.R. SINGH & ANOTHER v. M/s. MODI WORLD INFOTECH, REP. BY ITS PARTNER SUMEER AGARWAL & ANOTHER[1] wherein it is held as under: “Whenever a notice is sent by certificate of posting, a presumption under Section 114 of the Evidence Act would arise, and so it can be presumed that the letter sent under certificate of posting was received by the addressee. In this case since notice of dishonour was sent by the certificate of posting on 25.10.1999 a presumption can be drawn that within a few days from 25.10.1999 the addressees received the said notice sent by certificate of posting. Clause 31 of ‘Postal Guide” relied on by the learned counsel for the petitioners, only states that dispatch of the article entered in the certificate may not be made on the same day, unless it was handed over well within time to catch the last dispatch of mails for the day for the particular destination concerned. Therefore, if not on 25.10.1999, the letters sent by certificate of posting must have left the post office on the next day, and they can be presumed to have been received by the addressee on the next day or two days later.” As stated earlier, certificate of posting was handed over in the post office at Nandyal on 21.12.2002. Therefore, it must have reached the addressee i.e., the accused within couple of days which fact was admitted by the complainant in his evidence, but is silent about the date of receipt. A perusal of Ex.P6 returned notice sent by registered post on 20.12.2002 would show that the addressee was absent for a period of four days. Further a perusal of Ex.P9 - another notice sent on 27.12.2002 would show that there were some endorsements on the cover from 30.12.2002 onwards. Therefore, maximum time taken to serve the notice sent by certificate of posting from Nandyal to Proddatur can be taken as three days. That being so, notice sent by certificate of posting on 21.12.2002 must have been received by the accused on 24.12.2002. Even if the grace period of 15 days is calculated from 25.12.2002, the complaint should have been filed on or before 8.2.2003, but the same was filed on 17.2.2003 which is beyond the period of limitation. The said view of mine is fortified by the judgment of the Apex Court in SIL IMPORT v. EXIM AIDES SILK EXPORTERS[2]. Apart from that, the version in the complaint would show that petrol/diesel were supplied to the accused on credit basis. In support of the same, the complainant filed Exs.P9 to P11 and also placed oral evidence of P.Ws.1 & 2. There is no dispute with regard to the issuance of cheque under Ex.P1, but the presumption under Section 139 is a rebuttal one. The drawer of cheque is always at liberty to rebut such presumption either by adducing evidence on his behalf or from the documents filed by the complainant. P.W.2 in his evidence deposed that he carried the diesel in his tractor from the petrol bunk of the complainant to the place of contract work of the 1st respondent. P.W.2 in his evidence did not depose whether petrol or diesel was supplied on credit basis. Ex.P9 which was pressed into service by the complainant would show that one Prabhakar Reddy executed the same, and the relationship between the accused and Prabhakar Reddy is not known. Ex.P10 are the order forms signed by one Gopal Reddy, whereunder diesel was supplied to Sri Sai Creative Constructions. In none of the Ex.P10 order forms the name of the accused was not mentioned. In fact P.W.1 in his evidence did not depose that the accused was running Sri Sai Creative Constructions and that one Gopal Reddy used to sign on their behalf. Therefore, it can be said that there is no positive evidence on record to show that the accused had issued a cheque in discharge of a debt. By filing Exs.P9 to P11, the complainant gave scope for the accused to comment as to the supply of diesel to him. Therefore, the finding of the Court that Ex.P1 cheque was not issued in discharge of a legal enforceable debt cannot be found fault with. In case of appeal against acquittal the scope of appeal is circumscribed by limitation. Unless approach of lower Court in consideration of evidence is vitiated by manifest illegality or conclusion arrived at by the lower Court is perverse, no interference with the order of acquittal is permissible. In Mrinal Das Vs. State of Tripura[3] the Apex Court held as under: “It is clear that in an appeal against acquittal in the absence of perversity in the judgment and order, interference by this Court exercising its extraordinary jurisdiction, is not warranted. However, if the appeal is heard by an appellate court, being the final court of fact, is fully competent to re- appreciate, reconsider and review the evidence and take its own decision. In other words, law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court. If two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal. There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is found and to come to its own conclusion. The appellate court can also review the conclusion arrived at by the trial Court with respect to both facts and law. While dealing with the appeal against acquittal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. An order of acquittal is to be interfered with only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed.” For the aforesaid reasons and since the impugned judgment is based on proper appreciation of evidence, this Court is of the view that there are no merits in the appeal and the same is accordingly dismissed. There shall be no order as to costs. Consequently, miscellaneous petitions, if any, pending in this appeal shall stand closed. ________________________ C. PRAVEEN KUMAR,J Dt.04.07.2014 gbs [1] III (2002) BC 438 [2] (1999) 4 SCC 567 [3] (2011) 9 SCC 479