THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL REVISION CASE NO.980 OF 2003. DATED: 08-12-2009. Between: Kodali Srinivas … Petitioner/A3 and 1.Chalasani Vijaya Kumar and two others …Respondents/Complainants THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL REVISION CASE NO.980 OF 2003. ORDER: This Criminal Revision case under Sections 397 and 401 Cr.P.C., by the petitioner-A3 is directed against the judgment, dated 08-07-2003, in Crl.A.No.107 of 2000, on the file of the Metropolitan Sessions Judge, Vijayawada, in confirming the conviction of the petitioner-A3 of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the Act’) and sentencing him to undergo Imprisonment for six months and also to pay a fine of Rs.2,500/-, in default to undergo Simple Imprisonment for two months, as recorded by the III Metropolitan Magistrate, Vijayawada, dated 11- 09-2000, in C.C.No.436 of 1997. 2. Brief facts, that are necessary for disposal of the present revision may be stated as follows: A1 is the company, A2 is the Director of the A1 Company and A3 is the authorized signatory of A1 Company. A1 Company opened an account with the complainant for financial assistance. As on 03-12- 1996 an amount of Rs.5,64,377/- was found the balance amount of the transaction from time to time. To discharge the debt, A1 company issued post dated cheque, dated 03-01-1997 for Rs.5,60,000/-. When the cheque was presented for collection, it was returned with an endorsement ‘funds insufficient’. After giving statutory legal notice, the complaint was filed. 3. When the accused were examined under Section 251 Cr.P.C. for the offence punishable under Section 138 of the Act, the accused denied the offence, pleaded not guilty and claimed to be tried. 4. To substantiate its case, the complainant examined P.Ws. 1 and 2 and got marked Exs.P1 to P17. 5. After closure of the complainant’s evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating material found against them in the evidence of complainant witnesses. They denied the same. A2 herself was examined as D.W.1 and got marked Exs.D1 to D7. 6. After considering the evidence available on record, the trial Court while acquitting A2, convicted A1 and A3 of the offence punishable under Section 138 of the Act and accordingly sentenced to undergo imprisonment for six months each and also to pay a fine of Rs.2,500/- each, in default to undergo simple imprisonment for two months each. On appeal, the said conviction and sentence were confirmed by the appellate Court. Challenging the same, A3 preferred the present revision. 7. Now the point for consideration is whether the judgments of the two Courts below are correct, legal and proper? 8. Learned counsel appearing for the petitioner-A3 contended that there was no proper notice as contemplated under Section 138 (b) of the Act, that there is no evidence produced by the complainant to show that the certificate of posting was received by the petitioner, that the petitioner was in jail from 18-01-1997 to 19-04-1997 as per Ex.D2, which shows that there was no scope or possibility for the petitioner to receive the notice sent under certificate of posting and therefore, he prays to set aside the conviction and sentence recorded against the petitioner. He relied on some decisions to the effect that certificate of posting is not a valid service of notice as contemplated under Section 138 (b) of the Act. 9. On the other hand, learned counsel appearing for the 1st respondent-complainant contended that it is not the case of the petitioner that address mentioned on the certificate of posting is incorrect, that there is no material to show that the petitioner was in remand for about three months as per Ex.D2, that even if the notice has not been received by the petitioner, he can as well complain to the Court after receipt of summons and hence, he prays to dismiss the revision. He also relied on various decisions, which will be referred to at appropriate time. 10. There cannot be any dispute that revisional powers under Sections 397 and 401 Cr.P.C. are truncated. Unless the findings are improper or incorrect or illegal, ordinarily this Court would not interfere with the same. A finding can be said to be perverse when it is not based upon the admissible evidence. 11. The main crux of the case is that notice as contemplated under Section 138 (b) of the Act has not been served or received by A3. Therefore, the offence under Section 138 of the Act has not been made out. To constitute an offence incorporated in the main enacting clause of Section 138 of the Negotiable Instruments Act, the following three conditions have to be established: “ a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. b) The payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque (within thirty days) of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and 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.” 12. The whole object and purpose of issuing the notice to the accused is to give an opportunity to him to pay the amount due covered by the cheque. Ex.P4 is the receipt of certificate of posting, dated 12-03-1997. The addresses mentioned therein are not denied or disputed by A3. 13. Learned counsel appearing for the petitioner relied on a decision reported in K.ANNAJI RAO V N.KRISHNA RAJU SEKHAR AND ANOTHER [1], wherein it was held thus: “Therefore, I am of the opinion that unless the notice issued by the complainant is served on the respondent-accused s required under Section 138 (b) read with clause (c) thereof, the complaint is not maintainable and the accused cannot be convicted for the offence under Section 138 of the Act.” 14. He also relied on another decision reported in RAMANNA V T. JAYAPRAKASH [2], wherein it was held thus: “As has been held by this Court in Chandrappa v Subramanya (1985) ILR Kar 1555, no inference of service of notice on the addressee much less of any definite date of the service thereof could be drawn or presumed merely on the basis of the relevant “certificate of posting”. The posting of a postal article on a particular date cannot be an is not proof of the fact o its actual delivery to the addressee and of the particular date on which it was received by him even though the address given on that article is correct.” 15. He also relied on another decision reported in ASHOK KUMAR SINGH V STATE OF BIHAR [3], wherein it was held thus: “The question of notice has come up for judicial consideration in many cases and mostly in tenancy matters, and sometimes also in matter relating to holding of meetings of various bodies. This Court is of the view that in a disciplinary proceeding the employees have much more at stake in the sense that a person may lose his job. Therefore, the importance of sending of a proper notice is all the more, necessary in such cases. A notice which is sent under ordinary post or under certificate of posting merely raises a presumption of posting and does not raise any presumption of service. And the presumption which is available under Section 27 of the General Clauses Act is not available when notice is sent under certificate of posting. The presumption under Section 114 of the Evidence Act may be available in respect of such notice sent under certificate of posting, but such presumption is a rebuttable one. It I well known that presumption under Section 114 of the Evidence Act is one of fact and not of law. When the petitioners in this case have pledged their oath in disputing the service of the said notice, the presumption of regularity in official business which is available in Section 114 of the Evidence Act cannot be treated to be conclusive.” No doubt, the above decisions would go to show that the notice sent under certificate of posting appears to have been not available. 16. On the other hand, learned counsel appearing for the 1st respondent-complainant relied on a decision reported in C.C.ALAVI HAJI V PALAPETTY MOHAMMED AND ANOTHER [4], wherein it was held thus: “It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the curt in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there no proper service of notice as required under section 138, by ignoring statutory presumption to the contrary under Section 27of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran’s case (supra), if the giving of notice in the context of Clause (b) of the proviso was the same as the receipt of notice a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act.” The above decision is an authority since it was rendered by the apex Court consisting of three Hon’ble Judges. 17. He also relied on another decision reported in V.RAJA KUMARI V P.SUBBARAMA NAIDU AND ANOTHER [5], wherein it was held thus: “In Maxwell’s Interpretation of Statutes the learned author has emphasized that ‘provisions relating to giving of notice often receive liberal interpretation’ (vide p.99 of the 12th Edn.). The context envisaged in Section 138 of the Act invites a liberal interpretation for the person who has the statutory obligation to give notice because he is presumed to be the loser in the transaction and it is for his interest the very provision is made by the legislature. The words in clause (b) of the proviso to Section 138 of the Act show that the payee has the statutory obligation to make a demand by giving notice. The thrust in the clause is on the need to make a demand. It I only the mode for making such demand which the legislature has prescribed. A payee can send the notice for doing hi part for giving the notice. Once it I despatched his part is over and next depends on what the sender does.” 18. He also relied on another decision reported in M.RAMESH V VANKADARA SUNIL KUMAR [6], wherein it was held thus: “The averments in the complaint show that on the same day on which first respondent sent the statutory notice by registered post, he sent a notice under certificate of posting also to the petitioner and produced that certificate as document no.5 along with the complaint. Notice sent under certificate of posting also would be valid statutory notice, since Section 138 of the Act does not mandate that the notice under that section has to be sent only by registered post. Therefore, in view of the presumption that a letter addressed to the correct address of the addressee would be deemed to have been received by the addressee, the contention that there is no valid statutory notice, prima facie cannot be accepted, inc the question whether the address mentioned in the certificate of posting is the correct address of the petitioner or not can be decided only after trial.” 19. Though when a notice has been sent under certificate of posting, the presumption under Section 27 of the General Clauses Act cannot be drawn for the reason that it was not sent by registered post. But, however, the presumption under Section 114 (f) of the Indian Evidence Act, 1872 can be drawn, which reads thus: “114.Court may presume existence of certain facts: The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to be common course of natural event, human conduct and public and private business, in their relation to the facts of the particular case. The Court may presume- (a) … (b) … (c) … (d) … (e) … (f) that the common course of business has been followed in particular cases.” 20. Even in Ashok Kumar Singh’s case (3 supra) relied on by the learned counsel appearing for the petitioner, the presumption under Section 114 of the Evidence Act may be available in respect of such notice sent under certificate of posting. Even in Alavi Haji’s case (4 supra) it was held that Section 114 enables the Court to presume the existence of any fact, which it thinks likely to have happened. If that presumption is drawn, communication would have been delivered at the address of the addressee. Of course, it is a rebuttal presumption, but the petitoner-A3 must show that he was in judicial custody in another case and there was no scope or possibility for him to receive the notice. To rebut the said presumption, the accused himself need not be examined, but he can as well show in the evidence of complainant witnesses that he was in judicial custody for about 90 days during the relevant point of time. Though Ex.D2 shows that the petitioner was in judicial custody from 18-01-1997 to 19-04-1997, there is no evidence to show that A3 is the petitioner therein. Therefore, in view of the decision reported in Alavi Haji’s case (4 supra), it can be presumed that communication would have been delivered at the address of the addressee. Even assuming for a moment that the petitoner-A3 has not received the notice sent under certificate of posting for the reason that he was in judicial custody, nothing prevented him to raise the said plea immediately after receipt of summons stating that he has not received the notice and if 15 days time is given, he would pay the amount covered by the cheque. That is one of the points answered in the above case and in this case that point has not been raised. Therefore, after elaborate consideration of evidence on record, both the Courts below rightly found the accused guilty and none of the findings is shown to be illegal, incorrect or improper so as to call for interference by this Court. 21. Accordingly, the Criminal Revision Case is dismissed confirming the judgment, dated 08-07-2003, in Crl.A.No.107 of 2000, on the file of the Metropolitan Sessions Judge, Vijayawada --------------------- K.C.BHANU, J DATED: 08-12-2009 Note: Despatch the order Immediately. B/o Hsd [1] 2004 (4) ALT 491 [2] 1998 COMPANY CASES 517 [3] 1996 PATLJR-2-42 [4] 2007 CRL.L.J. 3214 [5] AIR 2005 SC 109 [6] 2005 ALT (CRL) 253