* THE HONOURABLE SRI JUSTICE B.N. RAO NALLA + CRIMINAL REVISION CASE No.505 OF 2009 % Date:09-09-2011 # G.K. Jaya Raman .. Petitioner v. $ M/s. Nambur Laboratories, rep. by its Managing Partner N. Mohan Rao and another .. Respondents ! Counsel for the petitioner : Sri V. Narayana Reddy ^ Counsel for respondent No.1 : Sri T.C. Krishnan Counsel for respondent No.2 : Public Prosecutor < GIST: > HEAD NOTE: ? CASES REFERRED: 1. 2003(2) ALD (Crl.) 219 (AP) 2. 2007(3)ALT (Crl.) 380 (AP) C/15 THE HONOURABLE SRI JUSTICE B.N. RAO NALLA CRIMINAL REVISION CASE No.505 OF 2009 JUDGMENT: This Criminal Revision Case has been filed by the petitioner G.K. Jaya Raman, assailing the judgment in Criminal Revision Petition No.43 of 2008 dated 23-03-2009 passed by the learned III Additional Sessions Judge (Fast Track Court), Nellore, whereby the learned Sessions Judge while confirming the conviction and sentence of imprisonment of the accused, passed by the learned II Additional Judicial Magistrate of First Class, Nellore in C.C. No.777 of 2005 dated 09-04-2008 for the offence under Section 138 read with 142 of Negotiable Instruments Act 1881 (for short “NI Act”), enhanced the compensation amount from Rs.75,000/- to Rs.1,29,000/-. 2. The petitioner herein is accused – G.K. Jaya Raman and respondent No.1 firm is the complainant – M/s. Nambur Laboratories. 3. For the sake of convenience, the petitioner and respondent No.1 are referred to as accused and the complainant respectively. 4. The case of the complainant, in brief, is as under: The complainant firm is manufacturing aqua, poultry and nutritious products under the name and style of Nambur Laboratires, whereas the accused is proprietor of Balaji Aqua. The accused got business transaction with the complainant firm on credit basis and indebted to a tune of Rs.1,29,000-60 paise, for which he issued a cheque in favour of the complainant, drawn on Indian Bank, Marakkanam Branch, on 29-07-2005 and when the same was presented by the complainant for encashment, it was dishonoured on the ground of insufficient funds and the same was intimated to the complainant by its banker State Bank of India, Barracks Branch, Nellore on 19-08-2005 by way of memo. Hence, complainant issued a legal notice to the accused on 25-08-2005 under registered post with acknowledgement due demanding to pay the cheque amount within 15 days from the date of receipt of the notice, which the accused got managed to return to the complainant. Therefore, the complainant filed the complaint against the accused under Section 138 and 142(b) of NI Act. 5. The learned Magistrate took cognizance of the case against the accused under Section 138 read with 142 of NI Act. 6. When the accused was examined under Section 251 Cr.P.C. for the offence under Section 138 read with 142 of the NI Act, he denied the offence and pleaded not guilty. 7. To prove his case, the complainant got himself examined as PW.1 and its Manager as PW.2 and got marked Exs.P-1 to P-14. 8. After closure of the evidence on behalf of the complainant, when the accused was examined under Section 313 Cr.P.C. for the incriminating material against him in the evidence of PWs.1 and 2, he denied the same and got himself examined as DW.1, but no documentary evidence was adduced. 9. The defence of the accused as DW.1 is that he never indebted the amount alleged by the complainant, but he issued cheque in question, which was blank except his signature and seal, to the complainant for security purpose at the request of the complainant’s request while entering the business with it. However, as some disputes arose between them, the complainant taking advantage of the blank cheque, which was issued for security purpose, got all other columns of the cheque filled with different ink and presented the same with its banker for the purpose of this case and managed to secure the legal notice without being served on him. 10. There is no dispute about the cheque being issued by the accused to the complainant, complainant presenting the cheque with its banker and dishonour of the same due to insufficient funds. It is also an admitted fact that PW.1 got issued the legal notice to the accused to the business address that was given by the accused. 11. In the above circumstances and considering the evidence on record, the learned Magistrate observing that when issuance of the cheque in question was admitted by the accused and the business address, mentioned on Ex.P-5 unserved postal cover of the legal notice, given by him as correct one, the burden is on him to prove that the cheque was not issued towards discharge of any legally enforceable debt and it was issued for the purpose of security, which he failed to prove and also failed to prove that the complainant managed to return the legal notice without being served on him, and as per the presumptions under Sections 118 and 139 of NI Act, held that accused has committed the offence under Section 138 read with 142 of NI Act and accordingly convicted him for the same and sentenced him to suffer simple imprisonment for a period of six months and to pay a fine of Rs.5,000/-, in default of payment of fine to suffer simple imprisonment for two months. 12. Aggrieved by the conviction and sentence passed by the learned Magistrate, accused preferred Criminal Appeal No.55 of 2008, whereas seeking to enhance the compensation amount and also sentence of the accused, complainant filed Criminal Revision Petition No.43 of 2008 before the III Additional Sessions Judge, (Fast Track Court), Nellore. 13. The first appellate Court after re-appreciation of the entire material on record, holding that accused failed to rebut the presumptions under Section 139 of NI Act and he is indebted to the complainant during business transactions with it and the same is legally enforceable debt and to discharge the same only, he issued the cheque in question to the complainant, and considering the provision under Section 357(3) Cr.P.C., partly allowed the appeal preferred by the accused setting aside the fine of Rs.5,000/- imposed by the learned Magistrate and also partly allowed the revision petition filed by the complainant enhancing the compensation from Rs.75,000/- to Rs.1,29,000/-. Assailing the conviction and sentence of imprisonment and also award of compensation at Rs.1,29,000/-, accused filed this revision. 14. Now the contention of the learned counsel appearing for the accused is that the impugned orders passed by both the Courts below are based on mere surmises and conjunctures; both the Courts below found the accused guilty of the offence alleged against him erroneously without there being any proper evidence that the cheque in question was issued by the accused to the complainant in discharge of legally enforceable debt and there was proper service of notice, which is a conditional precedent for the cases under Section 138 of NI Act. He also contends that both the Courts below failed to see that the complainant failed to prove its case beyond reasonable doubt. 15. Learned counsel appearing for the complainant supported the judgment under revision stating that the same is a well considered one and there are no grounds to interfere with the same, as such, the revision may be dismissed. 16. Now the point that arises for consideration is whether the Courts below committed any error, irregularity or illegality in finding the accused guilty of the offence he charged with ? 17. The questions that need to be answered are; (i) Whether the Courts below committed any error in finding that the cheque in question was issued by the accused to the complainant firm in discharge of legally enforceable debt ? (ii) Whether the complainant made material alterations in the cheque by filling up the blank columns in it for the purpose of this case ? (iii) Where there was proper service of notice on the accused which is mandatory ? 18. Coming to the question of legally enforceable debt, accused admitted in his cross-examination as DW.1 that he has business dealings with the complainant firm and has purchased qua feeds and various chemicals from the complainant firm and sold the same to various customers. He also admitted that Ex.P-1 cheque belongs to his account and he has also admitted his signature on it and issuance of the same to the complainant firm. Further, Ex.P-14 – balance confirmation letter dated 20-07-2005, wherein signature of the accused was admitted by him, discloses that on the date of issuance of Ex.P-1 cheque, accused acknowledged his debt of Rs.1,29,000/- to the complainant firm. Apart from the admissions of the accused himself as DW.1 in his cross-examination, there is evidence of PWs.1 and 2 also in that regard. In view of the same and considering the presumptions under Sections 118 and 139 of NI Act, both the Courts below found that the evidence of PWs.1 and 2 coupled with Exs.P-1 and P-14 and the admission of the accused himself as DW.1, proved that the accused is indebted to the complainant firm as confirmed by him under Ex.P-14 and towards discharge of the said legally enforceable debt, he has issued Ex.P-1 cheque. Thus the Courts below have not committed any error in finding that there was legally enforceable debt under the cheque in question. 19. Coming to the question of complainant making alterations in the cheque, the case of the accused is that he issued blank cheque to the complainant except signing and stamping it, but the complainant filled all other columns of the said cheque and presented the same for encashment without his consent or instructions, as such, it amounts to material alteration and cannot be enforced even though it is issued for legal liability and as the complainant made material alterations in the cheque in question, it does not constitute a cheque and in support of the same he relied on a decision of this Court in AVON ORGANICS LIMITED, HYDEABAD v. PIONEER PRODUCTS LIMITED, NEW DELHI AND OTHERS[1]. 20. But, accused failed to produce any material in support of his case that he issued blank cheque to the complainant for security purpose except signing and stamping it and later the complainant filled all other columns of the blank cheque and presented the same for encashment without his consent or instructions. Even he did not take any steps seeking opinion of the handwriting expert to prove his case that the complainant meddled with the cheque and made material alterations in it. He also failed to rebut the presumptions under Sections 118 and 139 of NI Act. Apart from this, as held in paragraph No.18 supra, there was legally enforceable debt under cheque in question since it is proved that there was business transactions between the complainant and the accused and accused purchased goods from the complainant firm and he himself has admitted his debt to the complainant under Ex.P-14 letter of balance confirmation and his issuance of Ex.P-1 cheque to the complainant firm. Further, the use of different ink and different writing on the face of it does not in each and every case follow that it was altered without knowledge and consent of the person who issued the same. In the circumstances, it cannot be said that the complainant has made material alterations in the cheque. Hence, the decision referred supra does not come to the rescue of the accused. 21. Coming to the question of proper service of notice on the accused by the complainant, it is a settled principle that if the complainant issues notice to the accused on proper and correct address by registered post with acknowledgement due, even if the notice returns unserved, it has to be treated that it is a deemed service. In support of the same, complainant relied on a decision of this Court in V. SATYANARAYANA RAJU v. G.B. GANGADHARA REDDY AND ANOTHER[2], wherein it is held that; “………, the mandatory notice issued by the appellant shall be deemed to have been served in view of the provisions of Section 27 of the General Clauses Act, which stipulate that when the envelope is sent to the addressee with proper and correct address by registered post with acknowledgement due, and there is endorsement that the addressee remained absent during delivery time, it has to be construed that it is a deemed service.” To rebut the above principle, accused failed to produce any material before this Court nor is it his case that notice was sent to a wrong address. Further, perusal of Exs.P-11 and P-12 discloses that goods sent to the address mentioned on Ex.P-5 unserved legal notice, during the usual course of business by the complainant were received by the accused. Moreover, notice was sent to the very address given by the accused as his business premises. In view of the same, it can be said that there was proper service of notice on the accused and no other view is possible. 22. For the aforesaid reasons, this Court is of the view that it cannot be said that the Courts below have committed any error, irregularity or illegality in finding the accused guilty of the offence he charged with. The point is accordingly answered in favour of the complainant and against the accused. 23. In view of the above, there are no grounds to interfere with the order under revision, and, as such, the revision is liable to be dismissed. 24. Accordingly, the Criminal Revision Case is dismissed confirming the order under revision in all respects. _________________ B.N. RAO NALLA, J Date:09-09-2011. NOTE: L.R. Copy to be marked. (B/O) PV [1] 2003(2) ALD (Crl.) 219 (AP) [2] 2007(3) ALT (Crl.) 380 (AP)