Rakesh Kumar vs Vishal Pathania
- Court
- High Court of Himachal Pradesh
High Court of H.P.
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Criminal Revision No.674 of 2023
Reserved on: 06.07.2026
Date of Decision: 18.07.2026
Uploaded on: 20.07.2026
____________________________________________________________________
Rakesh Kumar
……...Petitioner
Versus
Vishal Pathania
....Respondent
Coram
Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? Yes.
For the Petitioner: Mr. Maan Singh, Advocate.
For the Respondents: Mr. Ravinder Singh Chandel, Advocate
__________________________________________________________________________
Sandeep Sharma, J.
Instant criminal revision petition filed under Section 397
read with Section 401 of the Code of Criminal Procedure, lays
challenge to judgment dated 04.10.2023 passed by the learned
Additional Sessions Judge, Kullu, District Kullu, Himachal Pradesh,
in Criminal Appeal No.25 of 2023, affirming the judgment of
conviction and order of sentence dated 01.04.2023, passed by the
learned Chief Judicial Magistrate, Lahaul & Spiti at Kullu, H.P. in
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Criminal complaint No.1093-I/2019//420-I/2015, whereby the
Court below, while holding the petitioner-accused (in short the
" accused ") guilty of having committed offence punishable under
Section 138 of the Negotiable Instruments Act (in short the " Act ”),
convicted and sentenced him to undergo simple imprisonment for a
period of three months and pay compensation to the tune of
Rs.3,50,000/- to the respondent-complainant (in short the
" complainant ").
2. Precisely, the facts of the case, as emerge from the
pleadings as well as other material adduced on record by the
respective parties are that complainant instituted a complaint under
Section 138 of the Act in the competent Court of law, alleging therein
that accused, who was well-known to him, borrowed a sum of
Rs.2,70,000/- from him with the assurance that he will return the
same very soon. He alleged that with a view to discharge his aforesaid
liability, accused issued cheque bearing No.959377 dated 21.08.2013
amounting to Rs.2,70,000/- in favour of the complainant, but
aforesaid cheque on its presentation to the bank concerned was
dishonoured with the remarks “Funds insufficient” vide return memo
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dated 12.11.2013. Since accused failed to make the payment good
within the stipulated period, despite his having received legal notice,
complainant had no option, but to initiate proceedings under Section
138 of the Act in the competent Court of law.
3.
Learned trial Court on the basis of material adduced on
record by the respective parties, vide judgment/order dated
01.04.2023, held the accused guilty of his having committed offence
punishable under Section 138 of the Act and accordingly, convicted
and sentenced him as per the description given herein above.
4. Being aggrieved and dissatisfied with the aforesaid
judgment of conviction recorded by the Court below, accused
preferred an appeal before the learned Additional Sessions Judge,
Kullu, District Kullu, Himachal Pradesh, but same was dismissed
vide judgment dated 04.10.2023. In the aforesaid background,
accused has approached this Court in the instant proceedings,
praying therein for his acquittal after setting-aside the judgment of
conviction and order of sentence recorded by the Court below.
5. Vide order dated 22.12.2023, Co-ordinate Bench of this
Court stayed the substantive sentence imposed by the Court below
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subject to the accused depositing 20% of the compensation amount
and furnishing personal bond in the sum of Rs.25,000/- with one
surety in the like amount within a period of four weeks. However, fact
remains that aforesaid order never came to be complied with despite
repeated opportunities, as a result thereof, vide order dated
31.03.2025, interim protection granted vide aforesaid order came to
an end. Repeatedly matter was adjourned, enabling the accused
either to settle the matter with the complainant or to deposit the
amount in the Registry of this Court, but in vain. Record/file reveals
that more than ten opportunities came to be afforded to the accused
to do the needful and as such, this Court has no option, but to decide
the petition on its own merits.
6. Having heard learned counsel for the parties and perused
material available on record vis-a-vis reasoning assigned in the
impugned judgment passed by the learned Additional Sessions
Judge, Kullu, District Kullu, Himachal Pradesh, whereby judgment of
conviction and order of sentence recorded by the learned trial Court
came to be upheld, this Court is not persuaded to agree with Mr.
Maan Singh, learned counsel for the accused, that learned Courts
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below have failed to appreciate the evidence in its right perspective,
rather this Court finds that both the Courts below have dealt with
each and every aspect of the matter meticulously and there is no
scope left for this Court to interfere. Accused, in his statement
recorded under Section 313 of Cr.P.C, simply denied the
case/allegations of the complainant, however, despite repeated
opportunities, failed to lead any defence evidence to rebut the
evidence of the complainant. Pattern of cross-examination conducted
upon the complainant nowhere suggests that accused had set up a
defence with regard to non-issuance of the cheque as well as
signatures thereupon. Accused nowhere disputed his signatures over
the cheque in question. Since factum with regard to issuance of
cheque as well as signatures thereupon never came to be disputed,
no illegality otherwise can be said to have been committed by courts
below, while invoking Sections 118 and 139 of the Act, which talk
about presumption in favour of holder of cheque that cheque in
question was issued towards discharge of lawful liability.
7. No doubt, aforesaid presumption is rebuttable, but to
rebut such presumption person seeking to rebut such presumption is
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expected to raise probable defence. However, in the case at hand,
despite sufficient opportunities, accused failed to lead cogent and
convincing evidence to probablize his defence.
8. The Hon’ble Apex Court in M/s Laxmi Dyechem V. State
of Gujarat, 2013(1) RCR(Criminal) , has categorically held that if the
accused is able to establish a probable defence which creates doubt
about the existence of a legally enforceable debt or liability, the
prosecution can fail. To raise probable defence, accused can rely on
the materials submitted by the complainant. Needless to say, if the
accused/drawer of the cheque in question neither raises a probable
defence nor able to contest existence of a legally enforceable debt or
liability, statutory presumption under Section 139 of the Negotiable
Instruments Act, regarding commission of the offence comes into
play. It would be profitable to reproduce relevant paras No.23 to 25 of
the judgment herein:
“23. Further, a three judge Bench of this Court in the matter of
Rangappa vs. Sri Mohan [3] held that Section 139 is an example of a
reverse onus clause that has been included in furtherance of the
legislative objective of improving the credibility of negotiable
instruments. While Section 138 of the Act specifies the strong criminal
remedy in relation to the dishonour of the cheques, the rebuttable
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presumption under Section 139 is a device to prevent undue delay in
the course of litigation. The Court however, further observed that it
must be remembered that the offence made punishable by Section
138can be better described as a regulatory offence since the bouncing
of a cheque is largely in the nature of a civil wrong whose money is
usually confined to the private parties involved in commercial
transactions. In such a scenario, the test of proportionality should
guide the construction and interpretation of reverse onus clauses and
the defendant accused cannot be expected to discharge an unduly
high standard of proof”. The Court further observed that it is a settled
position that when an accused has to rebut the presumption
under Section 139, the standard of proof for doing so is all
preponderance of probabilities.
24. Therefore, if the accused is able to establish a probable
defence which creates doubt about the existence of a legally
enforceable debt or liability, the prosecution can fail. The accused can
rely on the materials submitted by the complainant in order to raise
such a defence and it is inconceivable that in some cases the accused
may not need to adduce the evidence of his/her own. If however, the
accused/drawer of a cheque in question neither raises a probable
defence nor able to contest existence of a legally enforceable debt or
liability, obviously statutory presumption under Section 139 of the NI
Act regarding commission of the offence comes into play if the same is
not rebutted with regard to the materials submitted by the
complainant.
25. It is no doubt true that the dishonour of cheques in order to
qualify for prosecution under Section 138 of the NI Act precedes a
statutory notice where the drawer is called upon by allowing him to
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avail the opportunity to arrange the payment of the amount covered
by the cheque and it is only when the drawer despite the receipt of
such a notice and despite the opportunity to make the payment within
the time stipulated under the statute does not pay the amount, that
the said default would be considered a dishonour constituting an
offence, hence punishable. But even in such cases, the question
whether or not there was lawfully recoverable debt or liability for
discharge whereof the cheque was issued, would be a matter that the
trial court will have to examine having regard to the evidence adduced
before it keeping in view the statutory presumption that unless
rebutted, the cheque is presumed to have been issued for a valid
consideration. In view of this the responsibility of the trial judge while
issuing summons to conduct the trial in matters where there has been
instruction to stop payment despite sufficiency of funds and whether
the same would be a sufficient ground to proceed in the matter, would
be extremely heavy.”
9. To the contrary, complainant, with a view to prove his
case, examined himself as CW-1, and tendered his evidence by way of
affidavit Ext.CA, reiterating therein the facts as averred in the
complaint. Besides above, he also proved on record the documents i.e
Ext.CB, return memo Ext. CC, legal notice Ext.CD, postal receipt
Ext.CE and undelivered registered letter Ext.CF. If the cross-
examination conducted upon this witness is perused in its entirety, it
can be safely concluded that accused was unable to extract anything
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contrary to what this witness stated in his examination-in-chief. In
his cross-examination, he deposed that his father is having 10-12
bighas land, from which he earns Rs.1,00,000/- to Rs.1,50,000/- per
year. While stating that his father had retired from the Forest
Department, he categorically stated that apart from accused, he did
not lent any amount to anyone else. While stating that he had given
the amount to the accused in the year 2013 at Bhuntar Taxi Stand,
he stated that sum of Rs.1,00,000/- was taken by him as a loan from
Sabji Mandi, whereas Rs.1,70,000/- was lying with him at home. He
deposed that sum of Rs.1,00,000/- was borrowed by him from Nank
Chand shop No.5, but in that regard, no document was ever prepared
by Nanak Chand. While admitting that he had also not prepared any
document pertaining to the transaction in question, he denied that
accused had not given the cheque to him. He deposed that accused
had given him cheque on 21.08.2013. He further deposed that he
had not filed any income tax return. He denied that cheque Ext.CB
was blank, which was taken by him from Nanku. He also denied that
accused never borrowed any amount from him.
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10. Pattern of cross-examination conducted upon afore
witness clearly reveals that though accused attempted to deny his
liability, but he set up a defence that cheque Ext.CB was blank and
same was issued to Nanku. However, aforesaid defence never came to
be probablized by leading cogent and convincing evidence. By putting
a suggestion with regard to issuance of blank cheque, may be
through Nanku, accused virtually admitted factum with regard to his
having issued cheque as well as signatures thereupon.
11. Complainant also examined Manoj Kumar as CW-1A,
who is an official of the Punjab National Bank, Bhunter Branch. He
proved on record the extract of cheque return register Ext.CW1/A
and the statement of account Ext.CW1/B.
12. If the evidence led on record by the respective parties is
read in conjunction, this Court sees no reason to differ with the
findings returned by the Courts below that complainant successfully
proved on record that accused had issued Cheque towards discharge
of his lawful liability. Defence otherwise attempted to set up could not
be proved by the accused by leading cogent and convincing evidence.
Otherwise also, by now it is well-settled that a person is liable for the
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commission of offence punishable under Section 138 of the Act even
if the Cheque is filled by some other person. Reliance in this regard is
placed upon judgment passed by the Hon’ble Apex Court in Bir Singh
Vs. Mukesh Kumar, (2019) 4 SCC 197, wherein it was observed as
under:
“37. A meaningful reading of the provisions of the Negotiable
Instruments Act including, in particular, Sections 20, 87 and 139,
makes it amply clear that a person who signs a cheque and makes it
over to the payee remains liable unless he adduces evidence to rebut
the presumption that the cheque had been issued for payment of a
debt or in discharge of a liability. It is immaterial that the cheque
may have been filled in by any person other than the drawer, if the
cheque is duly signed by the drawer. If the cheque is otherwise valid,
the penal provisions of Section 138 would be attracted.
38. answered in the negative.
40. Even a blank cheque leaf, voluntarily signed and handed over by
the accused, which is towards some payment, would attract
presumption under Section 139 of the Negotiable Instruments Act,
in the absence of any cogent evidence to show that the cheque was
not issued in discharge of a debt.
41. The fact that the appellant-complainant might have been an
Income Tax practitioner conversant with knowledge of law does not
make any difference to the law relating to the dishonour of a cheque.
The fact that the loan may not have been advanced by a cheque or
demand draft or a receipt might not have been obtained would make
no difference. In this context, it would, perhaps, not be out of
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context to note that the fact that the respondent-accused should
have given or signed blank cheque to the appellant- complainant, as
claimed by the respondent-accused, shows that initially there was
mutual trust and faith between them.
42. In the absence of any finding that the cheque in question was
not signed by the respondent-accused or not voluntarily made over
to the payee and in the absence of any evidence with regard to the
circumstances in which a blank signed cheque had been given to the
appellant-complainant, it may reasonably be presumed that the
cheque was filled in by the appellant-complainant being the payee in
the presence of the respondent-accused being the drawer, at his
request and/or with his acquiescence. The subsequent filling in of
an unfilled signed cheque is not an alteration. There was no change
in the amount of the cheque, its date or the name of the payee. The
High Court ought not to have acquitted the respondent-accused of
the charge under Section 138 of the Negotiable Instruments Act.”
13. Since factum of issuance of Cheque by the accused as
well as his signatures thereupon was never disputed, presumption as
available under Sections 118 and 139 of the Act rightly came to be
invoked in the case of the accused that Cheque in question was
issued in discharge of lawful liability. Since no evidence worth
credence ever came to be led on record to rebut the presumption, no
illegality can be said to have been committed by the Courts below
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while holding accused guilty for the commission of offence
punishable under Section 138 of the Act.
14. Though no specific defence ever came to be taken by the
accused with regard to non-service of statutory demand/legal notice
or premature filing of the complaint, but during proceedings of the
case at hand, Mr. Maan Singh, learned counsel for the accused,
vehemently argued that legal notice Ext.CD was never served upon
the accused. He further submitted that complaint under Section 138
of the Act ought not to have been entertained by the complainant
being premature, but both the Courts below ignored the aforesaid
material aspect of the matter. He submitted that return memo Ext.CC
was received by the complainant on 12.11.2013, pursuant to which
the statutory legal notice (Ext. CD) was issued on 22.11.2013,
however, thereafter complainant, without waiting for expiry of 45
days, proceeded to file complaint under Section 138 of the Act on
03.01.2014 and as such, same, being premature, deserves outright
rejection. He further submitted that bare perusal of undelivered
registered letter Ext.CF suggests that legal notice was not served
upon the accused as he was not found on the address given on the
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registered envelope and as such, service, if any, of the accused could
have been presumed after expiry of 30 days from the date of receipt of
issuance of legal notice dated 22.11.2013 i.e. 22.12.2013 and
thereafter, further 15 days’ time was required to be given to the
accused for making payment. However, in the instant case,
complainant proceeded to institute complaint under Section 138 of
the Act before expiry of 45 from the date of issuance of the legal
notice dated 22.11.2013. In support of aforesaid submissions, he
placed reliance upon the judgements passed by the Hon’ble Apex
Court in M.D. Thomas Vs. P.S. Jaleel and another, (2009) 14
Supreme Court Cases 398 and V. Raja Kumari Vs. P. Subbarama
Naidu, 2004(8) SCC 774.
15. To the contrary, Mr. Ravinder Singh Chandel, learned
counsel for the respondent, vehemently argued that plea raised at the
behest of the accused with regard to complaint being premature and
non-service of statutory demand notice is not maintainable at this
stage because such defence never came to be raised during trial. He
placed heavy reliance upon the judgment passed by the Hon’ble Apex
Court in C.C. Alavi Haji Vs. Palapetty Muhammed & Anr. 2007
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(06) SCC 555, wherein it came to be that when a notice is returned
with an endorsement ‘refused’, it is deemed to be served. Though this
Court finds that plea with regard to non-service of demand notice
never came to be raised by the accused during trial, but even if same
is taken for consideration, being legal arguments raised in the instant
proceedings, this Court finds that complainant had attempted to
serve the accused with legal notice on his correct address, but yet he
could not be served as he was not found available on the given
address as is evident from the endorsement given on the undelivered
letter. Once the complainant had attempted to serve the accused with
legal notice on his correct address, on which he subsequently came
to be served with the summons in the complaint filed under Section
138 of the Act, accused can be deemed to have been served with legal
notice. Hon’ble Apex Court in C.C. Alavi Haji (supra), held that
though Section 138 of the Act does not require that the notice should
be given only by post, yet in a case where the sender has dispatched
the notice by post with correct address written on it, the principle
incorporated in Section 27 of the General Clauses Act, 1897 can be
invoked in such a case. Afore Court further held that in this
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situation, service of notice is deemed to have been effected on the
addressee unless he proves that it was not really served and that he
was not responsible for such non-service.
16. A similar view was taken in Krishna Swaroop Agarwal
v. Arvind Kumar, 2025 SCC OnLine SC 1458 , wherein it was
observed:
“13. Section 27 of the General Clauses Act, 1887, deals with
service by post:
“27. Meaning of Service by post.- Where any [Central Act]
or Regulation made after the commencement of this Act
authorizes or requires any document to be served by
post, whether the expression “serve” or either of the
expressions “give” or “send” or any other expression is
used, then, unless a different intention appears, the
service shall be deemed to be effected by properly
addressing, pre-paying and posting by registered post, a
letter containing the document, and, unless the contrary
is proved, to have been effected at the time at which the
letter would be delivered in the ordinary course of post”.
14. The concept of deemed service has been discussed by this
Court on various occasions. It shall be useful to refer to some
instances:
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14.1 In Madan and Co. v. Wazir Jaivir Chand (1989) 1
SCC 264, which was a case concerned with the payment
of arrears of rent under the J&K Houses and Shops Rent
Control Act, 1966. The proviso to Section 11, which is
titled “Protection of a Tenant against Eviction”, states that
unless the landlord serves notice upon the rent becoming
due, through the Post Office under a registered cover, no
amount shall be deemed to be in arrears. Regarding
service of notice by post, it was observed that in order to
comply with the proviso, all that is within the landlord's
domain to do is to post a pre-paid registered letter
containing the correct address and nothing further. It is
then presumed to be delivered under Section 27 of the GC
Act. Irrespective of whether the addressee accepts or
rejects, “there is no difficulty, for the acceptance or
refusal can be treated as a service on, and receipt by the
addressee.” 14.2 In the context of Section 138 of the
Negotiable Instruments Act, 1881it was held that when
the payee dispatches the notice by registered post, the
requirement under Clause (b) of the proviso of Section
138 of the NI Act stands complied with and the cause of
action to file a complaint arises on the expiry of that
period prescribed in Clause (c) thereof. [See: C.C. Alavi
Haji v. Palapetty Mouhammed (2007) 6 SCC 555] 14.3
The findings in C.C. Alavi (supra) were followed in
Vishwabandhu v. Srikrishna (2021) 19 SCC 549. In this
case, the summons issued by the Registered AD post
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was received back with endorsement “refusal”. In
accordance with Sub-Rule (5) of Order V Rule 9 of CPC,
refusal to accept delivery of the summons would be
deemed to be due service in accordance with law. To
substantiate this view, a reference was made to the
judgment referred to supra. 14.4 A similar position as in
C.C. Alavi (supra) stands adopted by this Court in
various judgments of this Court in Greater Mohali Area
Development Authority v. Manju Jain (2010) 9 SCC 157;
Gujarat Electricity Board v. Atmaram Sungomal Posani
(1989) 2 SCC 602; CIT v. V. K. Gururaj (1996) 7 SCC 275;
Poonam Verma v. DDA (2007) 13 SCC 154; Sarav
Investment & Financial Consultancy (P) Ltd. v. Lloyds
Register of Shipping Indian Office Staff Provident Fund
(2007) 14 SCC 753; Union of India v. S.P. Singh (2008) 5
SCC 438; Municipal Corpn., Ludhiana v. Inderjit Singh
(2008) 13 SCC 506; and V.N. Bharat v. DDA (2008) 17
SCC 321.
17. In the instant case, the postman visited the house of the
accused on 29.11.2013 and made an endorsement that the addressee
was not found at home. Since the date on which the envelope was
returned is not legible, this Court, taking note of the fact that the
legal notice dispatched on 22.11.2013 reached the address of the
accused on 29.11.2013, has reason to presume and believe that
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undelivered envelope would have been received back by the
complainant on or about 05.12.2013.
18. Hon’ble Apex Court in C.C. Alavi Haji (supra) held that
the entire purpose of requiring a notice is to give an opportunity to
the drawer to pay the cheque amount within 15 days of service of
notice and thereby free himself from the penal consequences
of Section 138 of the Act. For this reason, Clause (c) of proviso
to Section 138 provides that the section shall not apply unless the
drawer of the cheque fails to make the payment within 15 days of the
receipt of the said notice. Relevant para of the afore judgment is
extracted hereinbelow:-
“16. As noticed above, the entire purpose of requiring a notice
is to give an opportunity to the drawer to pay the cheque
amount within 15 days of service of notice and thereby free
himself from the penal consequences of Section 138 . In D.Vinod
Shivappa Vs. Nanda Belliappa, AIR 2006 SUPREME COURT
2179, this Court observed:
One can also conceive of cases where a well intentioned
drawer may have inadvertently missed to make
necessary arrangements for reasons beyond his control,
even though he genuinely intended to honour the
cheque drawn by him. The law treats such lapses
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induced by inadvertence or negligence to be pardonable,
provided the drawer after notice makes amends and
pays the amount within the prescribed period. It is for
this reason that Clause (c) of proviso to Section
138 provides that the section shall not apply unless the
drawer of the cheque fails to make the payment within
15 days of the receipt of the said notice.
To repeat, the proviso is meant to protect honest drawers
whose cheques may have been dishonoured for the fault of
others, or who may have genuinely wanted to fulfil their
promise but on account of inadvertence or negligence failed to
make necessary arrangements for the payment of the cheque.
The proviso is not meant to protect unscrupulous drawers who
never intended to honour the cheques issued by them, it being
a part of their modus operandi to cheat unsuspecting persons.
19. Reliance is also placed upon the judgment passed by
Punjab and Haryana High Court in CRM-A No.1920-MA of 2016
(O&M), titled as Vee Kay Concast Pvt. Ltd. Vs. M/s Stanely
Products and Anr. Relevant paras of the afore judgment are
extracted hereinbelow:-
“7. Section 27 of General Clauses Act (in short “ GC Act ”)
reads as under:-
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“27. Meaning of service by post.—Where any Central
Act or Regulation made after the commencement of
this Act authorizes or requires any document to be
served by post, whether the expression “serve” or
either of the expressions “give” or “send” or any other
expression is used, then, unless a different intention
appears, the service shall be deemed to be effected by
properly addressing, pre-paying and posting by
registered post, a letter containing the document, and,
unless the contrary is proved, to have been effected at
the time at which the letter would be delivered in the
ordinary course of post.”
8. The Hon'ble Supreme Court in C.C Alavi (supra) held that
Section 27 of GC Act gives rise to a presumption that service
of notice has been effected, when it is sent to the correct
address by registered post. 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. Similar view
has been taken by the Hon'ble Supreme Court in Subodh S.
Salaskar Vs. Jay Prakash M. Shah and another, (2008)
13 SCC 689 and M/s Madan & Company Vs. Wazir
Jaivir Chand, 1989 1 SCC 264.
9. Apart from above, Section 114 of the Indian Evidence Act,
1872 (for short ‘IE Act’) to be read with Illustration (f)
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thereunder, which provides that when it appears to the Court
that the common course of business renders it probable that
a thing would happen, the Court may draw presumption that
the thing would has happened, unless there are
circumstances in a particular case, to show that the common
course of business was not followed. Thus, Section 114 of IE
Act enables the Court to presume the existence of any fact,
which, it thinks, is likely to have happened, regard being had
to the common course of natural events, human conduct and
public and private business in their relation to the facts of the
particular case. Consequently, the Court can presume that
the common course of business has been followed in
particular cases.
10. When aforesaid legal proposition is made applicable to
communications sent by post, Section 114 of IE Act enables
the Court to presume that in the common course of natural
events, the communication would have been delivered at the
address of the addressee. However, it is important to note
that Section 27 of GC Act refers to a specific presumption,
comparing to the presumption that is raised under Section
114 of IE Act, which is general in nature.
11. In view of the above legal position, though there is
presumption of service by notice when sent under registered
post, however, in case the registered cover containing the
notice is not received back as undelivered, no time limit is
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provided within which service of notice upon the addressee is
to be presumed. In this regard, Rule 99 of the Indian Post
Office Rules, 1933 (for short ‘Rules of 1933’) is relevant,
which provides as under:-
“If an addressee of a value payable postal article
omits to take delivery of it within 7 days, following the
days of its presentation or the date of delivery of an
intimation or its arrival to him or to his accredit agent,
or in the case of an article sent out for delivery through
a village postman, the date of return to the post office
of the village postman, after its first presentation or
delivery of intimation of its arrival to the addressee or
his accredit agent, the article shall be returned to the
sender on the 8th day.
Provided that if in the meantime the addressee
has applied in writing to the post office for the
detention of the article for a further period not
exceeding seven days beginning with the said eighth
day and pays with the application a fee of rupees
three for each day of such further period in the case of
value payable parcels and rupees two for each day of
such further period in the case of other value payable
articles, the article shall not be returned to the sender
until the expiration of the further period covered by the
application. Any fee so paid shall in no circumstances
be returned.”
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12. A perusal of the Rules of 1933 indicates that in case the
addressee of the article omits to take delivery thereof within
07 days following date of presentation, the article is to be
returned to the sender on the 8th day, unless the addresses
has applied within next seven days for its detention.
13. Since in the present case, the notice sent through
registered AD post was not returned to the sender i.e.
applicant-complainant as undelivered on the 8th day or
thereafter, so it is to be presumed that addressee of the
notice i.e. respondents-accused must have received the same
within 07 days. As such, it is held that service of notice, in
such circumstances, is to be assumed within a period of 07
days and therefore, the period of 15 days for making
payment shall begin on the expiry of 07 days from the date
of posting of the legal notice through registered AD post.
14. The factual matrix of the case indicates that there is
specific denial by the respondents-accused with regard to
receipt of legal notice and in such a scenario, provisions of
Section 27 of GC Act would come into play and presumption
in favour of the applicant-complainant arises with regard to
service of notice on the correct address mentioned in the
registered AD post and neither the contrary has been proved
by the respondents-accused nor the registered AD post was
received back undelivered by the applicantcomplainant.
Therefore, in view of the aforementioned provisions, it is
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presumed that the respondents-accused must have received
the legal notice through registered AD post and in such a
scenario, period of 07 days for the service of notice is to be
taken into account and after the presumed service of notice,
the respondents-accused had the opportunity to make the
payment demanded vide legal notice, within a period of 15
days.
15. Since the legal notice in this case was posted through
registered AD post on 23.01.2013, it is to be assumed that
said notice was received by the addressee-accused on or
before 30.01.2013 and the period of 15 days for making the
payment shall begin from 31.01.2013, which will expire on
14.02.2013 and therefore, the complaint (supra) filed on
11.03.2013, being within next one month, is held to be within
limitation.”
20. In view of aforesaid law taken into consideration,
coupled with the fact that accused was unable to rebut the
presumption that complainant served him with legal notice on his
correct address, it is presumed that accused must have received
the legal notice through registered AD post and in such a scenario,
period of 07 days for the service of notice is to be taken into
account and after the presumed service of notice, whereafter the
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accused had the opportunity to make the payment demanded vide
legal notice, within a period of 15 days. Moreover, as has been held
by Hon’ble Apex Court in C.C.Alavi Haji (supra), very purpose and
object of issuing legal notice is to provide an opportunity to the
accused to make payment within 15 days so as to avoid the ordeal
of criminal trial. Admittedly, in the case at hand, after receipt of
summons from the learned trial Court, accused failed to pay the
amount demanded in the legal notice within the stipulated period
of 15 days.
21.
Having scanned pleadings as well as evidence adduced
on record by the complainant, this court finds that complainant
successfully proved all the ingredients of Section 138 of the Act.
Similarly, factum with regard to signatures and issuance of cheque
by the accused towards discharge of lawful liability stands duly
established on record.
22. Moreover, this Court has a very limited jurisdiction
under Section 397 of the Cr.PC, to re-appreciate the evidence,
especially, in view of the concurrent findings of fact and law
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recorded by the Courts below. In this regard, reliance is placed
upon the judgment passed by Hon’ble Apex Court in case “State
of Kerala Vs. Puttumana Illath Jathavedan Namboodiri”
( 1999) 2 Supreme Court Cases 452, wherein it has been held as
under:-
“In its revisional jurisdiction, the High Court can call for and
examine the record of any proceedings for the purpose of
satisfying itself as to the correctness, legality or propriety of
any finding, sentence or order. In other words, the jurisdiction
is one of supervisory jurisdiction exercised by the High Court for
correcting miscarriage of justice. But the said revisional power
cannot be equated with the power of an appellate court nor can
it be treated even as a second appellate jurisdiction. Ordinarily,
therefore, it would not be appropriate for the High Court to re-
appreciate the evidence and come to its own conclusion on the
same when the evidence has already been appreciated by the
Magistrate as well as Sessions Judge in appeal, unless any
glaring feature is brought to the notice of the High Court which
would otherwise tantamount to gross miscarriage of justice.”
23.
True it is that the Hon’ble Apex Court in Krishnan and
another Versus Krishnaveni and another, (1997) 4 Supreme
Court Case 241 ; has held that in case Court notices that there is a
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failure of justice or misuse of judicial mechanism or procedure,
sentence or order is not correct, it is salutary duty of the High Court
to prevent the abuse of the process or miscarriage of justice or to
correct irregularities/ incorrectness committed by inferior criminal
Court in its judicial process or illegality of sentence or order, but
learned counsel representing the accused has failed to point out any
material irregularity committed by the Courts below while
appreciating the evidence and as such, this Court sees no reason to
interfere with the well reasoned judgments passed by the Courts
below.
24. Consequently, in view of the discussion made herein
above as well as law laid down by the Hon’ble Apex Court, this Court
sees no valid reason to interfere with the well-reasoned judgments
recorded by the Courts below, which otherwise, appear to be based
upon proper appreciation of evidence available on record and as
such, same are upheld.
25. Accordingly, the present criminal revision petition is
dismissed being devoid of any merit. The petitioner is directed to
surrender himself before the learned trial Court within two months to
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serve the sentence as awarded by the learned trial Court, if not
already served. Interim direction, if any, stands vacated. Bail bonds,
if any, are discharged. Pending applications, if any, also stand
disposed of.
July 18, 2026 (Sandeep Sharma),
( sunil ) Judge
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