Appellant – original complainant has preferred this appeal under section 378 of the Code of Criminal Procedure and challenged the judgment and order of acquittal passed by the learned Additional Senior Civil Judge & JMFC, Bharuch on 2.9.2006 acquitting the respondent accused for the offence under section 138 of the Negotiable Instruments Act, 1881 (for short “the Act”). 2. According to the complainant, the complainant and the accused belonged to same caste and the complainant used to advance money to the accused for his business purposes. On settlement of account on 15.3.2002, Rs.2,35,000/- remained due and payable by the accused and documents of settlement were destroyed. The accused gave cheque No.100066 dated 15.4.2002 for Rs.2,35,000/- drawn on the Bharuch Nagarik Sahakari Bank Limited towards outstanding amount. On presenting the cheque in the bank, it returned unpaid with endorsement insufficient funds and that there was no rubber stamp. Therefore, the complainant served notice dated 27.4.2002 through advocate to the accused. The notice was sent by RPAD and under certificate of posting. The notice was received by the accused, but the acknowledgment due did not return and the envelope sent by certificate of posting did not return. Therefore, the accused is know of the notice, despite that the accused did not comply with the notice. Therefore, the complaint under section 138 of the Act was filed in the Court of learned CJM, Bharuch and it was registered as Criminal Case No.4235 of 2002.
3. The trial Court issued summons to respondent accused and the accused appeared and pleaded not guilty to the charge and claimed to be tried. Therefore, the complainant adduced evidence in support of his case. On completion of recording of evidence, the incriminating circumstances appearing in the evidence against accused were explained to him. Accused in his further statement recorded under section 313 of the Code of Criminal Procedure, 1973 denied having committed the offence and stated that he shall explain in writing. It appears from the record that written statement was submitted by the accused. After hearing learned advocates for the parties, the trial Court by impugned judgment, acquitted the accused. Being aggrieved by the said decision, the appellant – original complainant has preferred this acquittal appeal.
4. I have heard learned advocate Mr. Kapadia for the appellant, learned advocate Mr. Lakhani for respondent No.2 at length and in great detail. I have also heard learned APP Ms. Shah for the respondent No.1 – State. I have also perused the R & P of the trial Court.
5. Learned advocate Mr. Kapadia for the appellant submitted that the notice was served to the accused and as the acknowledgment due did not return, the complainant made an application to the postal authority to give certificate with regard to service of registered article to the accused and the certificate was obtained with regard to service of notice to the accused. He also submitted that in order to prove the certificate, an employee from the postal department, who gave the certificate, was also examined. He further submitted that the accused has not disputed the cheque, but a false defence is raised and therefore, the trial Court committed error in recording finding that notice was not served to the accused. He further submitted that the evidence produced on record clearly indicates that amount advanced to the accused and the cheque was given towards discharge of liability and therefore, the trial Court committed error in acquitting the accused and therefore, the present appeal is required to be allowed.
6. Learned advocate Mr. Lakhani submitted that the complainant failed to prove service of notice as required under law and even the notice was also not admitted in evidence. He further submitted that the complainant failed to prove the cheque. Therefore, the trial Court was justified in recording acquittal and no interference is warranted in the impugned judgment and the appeal is required to be dismissed.
7. Under section 138 of the Act, where any cheque drawn by a person on an account maintained by him for payment of any amount of money out of that account for the discharge, in whole or in part, of any debt or other liability, is returned unpaid either because of the amount of money standing to the credit of that account is insufficient or that it exceeds the amount arranged from that account. Such person shall be deemed to have committed the offence. It also provides that in order to make a drawer of cheque liable for punishment, the payee or the holder in due course of the cheque, as the case may be, is required to make a demand for payment of unpaid cheque amount by giving a notice in writing to the drawer of the cheque on receipt of the information by him from the bank regarding return of the cheque as unpaid.
8. It appears from the allegations made in the complaint that as the cheque returned unpaid, the complainant served a notice through advocate to the accused and it was sent by the RPAD and by certificate of posting. It also appears that the acknowledgment due of the notice sent by RPAD did not return and therefore, the complainant made an application before the postal authority, who issued alleged certificate stating that the postal article was delivered to the addressee. In order to prove the service of notice, the complainant has produced copy of the notice at Mark 3/3, certificate of posting at Exh-39 and certificate issued by the postal authority at Exh-61.
9. It appears that the complainant did not produce the office copy of the notice allegedly sent to the accused, but produced xerox copy of the notice and did not lead evidence to prove that the office copy of the notice was not available for production in the Court. As notice is not admitted in evidence and not proved, it cannot be said that the notice was served to the accused.
10. The complainant produced communication given by the postal department at Exh-61 to prove that the notice was received by the accused. The complainant also examined witness Natvarbhai Gohil at Exh-60 to prove the alleged certificate. It may be stated that the complainant has termed the communication of postal department as certificate, but it is not a certificate as claimed by the complainant. Witness Natvarbhai Gohil Exh-60 has deposed that receipt showing letter sent by registered acknowledgment due is produced at Mark 3/4 and certificate Exh-61 is signed by him. It emerges from Mark 3/4 that it is xerox copy of certificate of posting and it is admitted in evidence as Exh-39. It is very strange that how the xerox copy of a document could be admitted in evidence without there being any evidence to show that the original document is either lost or not available. It is also significant that the alleged postal receipt is superimposed upon the certificate of posting and is not a part of the document admitted in evidence. Therefore, said receipt cannot be relied upon to infer that the notice was sent by registered acknowledgment. Therefore, it is difficult to believe that the notice was sent to the accused by RPAD.
11. As regards receipt of notice, the complainant produced communication Exh-61 addressed to the advocate by department of post. It indicates that a registered letter No.5618 dated 27.4.2002 was delivered to the addressee on 30.4.2002. It is not a certificate as claimed by the complainant. It only mentions about registered letter delivered to the addressee. Even, it does not indicate that the registered letter sent by registration No.5618 was addressed to the accused. As complainant has not produced any evidence to show that the notice was sent to the accused by registration No.5618 dated 27.4.2002, it is difficult to believe that the said communication was in respect of receipt of registered letter by the accused. Therefore, in my view, it cannot be said that the notice was sent to the accused by RPAD and as the acknowledgment due did not return, the postal department issued certificate certifying that the envelope containing notice was served to the accused. Therefore, in my view, complainant failed to prove that notice of return of cheque unpaid as required under section 138(B) of the Act was served to the accused.
12. As regards notice sent by certificate of posting, as observed earlier, original certificate of posting has not been produced on record of the case. However, the trial Court admitted xerox copy of the certificate at Exh-39. In absence of any evidence to prove that the original certificate is lost, in my view, the trial Court committed error in admitting the xerox copy of certificate of posting in evidence. Therefore, it cannot be said that the notice was sent to the accused under postal certificate and as it did not return, the notice was deemed to have been served to the accused.
13. As regards allegation that the accused gave cheque towards discharge of his liability, it appears from the allegations made in the complaint that there was series of transactions between the parties and after the settlement of account, the accused allegedly gave cheque Exh-80 towards discharge of his liability. The complainant witness Jitendrakumar Modi at Exh-17, who is the husband and power of attorney holder of complainant Jayshreeben, has deposed that the accused in his absence took loan from his wife and on settlement of account, Rs.2,35,000/- remained payable and the documents of settlement of account were destroyed. The witness has also deposed that his wife is partner in his firm and he maintains books of account. The complainant Jayshreeben has in her evidence Exh-47 has stated that the evidence given by her husband and power of attorney holder Jitendra is correct. She has also deposed that she has no independent income.
14. In view of above, it emerges that there is no evidence to indicate that the complainant was a partner in the business run by her husband and had income to advance money to the accused. The complainant witness Jitendrakumar Exh-17 has not produced books of account to show that his wife Jayshreeben Exh-47 was a partner and had income to advance money to the accused. Presumption under section 139 is rebuttable. Unless contrary is proved, it is presumed that the holder of cheque received the same for the discharge in whole or in part of any debt or other liability. It is settled proposition that presumption raised in favour of holder of cheque does not extend to the extent that the cheque was issued for the discharge of any debt or liability, which is required to be proved by the complainant. The standard of proof for rebuttable presumption is that of “Preponderance of probabilities”. Therefore, if the accused is able to raise a probable defence, which creates doubt about existence of a legally recoverable debt or liability, the prosecution can fail. It is not necessary that in order to prove probable defence, accused is required to step into witness box or lead positive evidence. The accused can rely upon on the materials submitted by the complainant in order to raise such defence. In the present case, it emerges that on settlement of account, the cheque in question was given by the accused towards discharge of his liability and documents of accounts are destroyed. Therefore, except bare words, there is no cogent and convincing evidence to prove that the complainant had income and the amount was advanced out of such income and the cheque was given towards discharge of liability by the accused. The accused was able to raise probable defence and the burden shifted on the accused to prove that the cheque was given towards discharge of recoverable debt or liability. However, the complainant failed to discharge his burden. The complainant failed to prove that notice of dishonour of cheque was received by the accused and the cheque in question was given towards discharge of liability on settlement of account. Therefore, the trial Court was justified in passing the impugned judgment and hence, no interference is warranted in this appeal.
15. In the result, the appeal fails and stands dismissed.
(BANKIM.N.MEHTA, J.) shekhar*