ORDER
1. Heard learned Advocates for the parties.
2. Rule. Rule made returnable forthwith by consent.
3. The petitioner challenges the judgment and order of conviction and sentence passed by the Chief Judicial Magistrate, at Latur in STCC No. 6935 of 1993 on 19th July, 1996 and confirmed by the Sessions Judge, Latur on 18th January, 2000 in Criminal Appeal No. 36 of 1996. The petitioner has been convicted of the offence punishable under Section 138 of the Negotiable Instruments Act and sentenced to pay a fine of Rs. 28,000/- and in default, to undergo S.I. for two months.
4. The facts in brief, relevant for the decision are that the respondent No. 1 filed complaint in the Court of C.J.M., Latur on 27-12-1993 complaining that the petitioner, on the day of Gudi Padwa of 1993, had borrowed a sum of Rs. 14,000/- with assurance to return the same in June, 1993 and accordingly, had issued two cheques, one dated 21-6-1993 for Rs. 5,000/- and another dated 15-7-1993 for Rs. 9,000/- in favour of the respondent-complainant but, on submission of the said cheques for encashment, they were dishonoured on 4-11-1993 and, therefore, the respondent-complainant issued demand notice dated 23-11-1993 by registered post to the petitioner. The postman visited the house of the petitioner at Waghala on 26, 27 and 28th November, 1993 but the petitioner was found absent at her residence. On 1st December, 1993 when the postman visited the house of the petitioner, she refused to accept the notice and, therefore, it was returned unserved as “refused” by the petitioner. It was further stated by the complainant that the petitioner having failed to repay the amount within the stipulated period in spite of notice of demand in that regard, the respondent was compelled to file the said complaint under Section 138 of Negotiable Instruments Act. On service of summons in the said case, the petitioner appeared before the Magistrate and contested the claim of the respondent contending that there was no existing liability in favour of the respondent and, therefore, no offence was committed by the petitioner for dishonour of the said cheques and that, no notice as required under the law was served upon the petitioner prior to the institution of the complaint. The respondent examined himself whereas the petitioner examined two defence witnesses, one being the Bank Manager and another a relative of the petitioner. The trial Court, after hearing the parties and on analysis of the evidence on record, held that there was proper service of the notice of demand pursuant to dishonour of the cheques and prior to the institution of the complaint and that the petitioner has not rebutted the presumption arising under Section 139 of the said Act and, therefore, the petitioner’s liability in relation to the said cheques was fully established and, therefore, the petitioner was convicted for the offence punishable under Section 138 of the said Act. Appeal preferred against the same by the petitioner did not yield any fruitful result for the petitioner. Hence, the present petition.
5. The challenge to the conviction of the petitioner under Section 138 of the said Act is three fold. Firstly, that there was no service of demand notice upon the petitioner prior to institution of the complaint and, therefore, the entire proceedings are bad in law; Secondly, that even if it is presumed that the respondent has established that notice has been served upon the petitioner, it is not established that the notice so served was a notice of demand in relation to the cheques which were dishonored in the case in hand; and thirdly, that the respondent has failed to establish the subsisting liability of the petitioner in favour of the respondent-complainant on the day the cheques were stated to have been dishonoured.
6. Placing reliance upon the decision of the Apex Court in the matter of Sridhar M.A., and of the learned single Judge of this Court in the matter of Hajrabi Abdul Gani v. Abdul Latif Azizulla, , the learned Advocate for the petitioner submitted that the impugned judgments of the Courts below, ex facie, disclose that the presumption arising in relation to service of notice was successfully rebutted by the petitioner in view of the fact that the registration number on the registration receipt in relation to the registration of the notice stated to have been sent to the petitioner differs from the number which was found on the envelope which was stated to have been returned on refusal to accept the same by the petitioner and that the respondent failed to examine the postman to prove the fact of refusal of the notice by the petitioner coupled with the evidence on record of the witness examined by the petitioner to establish that the petitioner was not available at her residence on 1st December, 1993 when the postman is stated to have visited her residence. According to the learned Advocate for the petitioner, there is no substantial evidence to establish the fact of service of notice in accordance with the provisions of law and, therefore, the mandatory provisions contained in the proviso to Section 138 of the said Act having not been complied with, the entire proceedings are vitiated. Attention was drawn to the observations of the Apex Court in the matter of Sridhar M.A. wherein it has been held that presumption of demand service is not a matter of course in all cases and deemed service is to be accepted depending upon the facts of each case. It was further submitted that though the notice is stated to have been posted to the petitioner, the materials on records do not establish that the notice which was stated to have been sent was in fact, the notice of demand in terms of the proviso to Section 138 of the said Act and in respect of demand for payment of money in relation to the cheques which were stated to have been dishonoured and in the absence of this fact being established, it cannot be said that the alleged notice relates to the notice of demand pertaining to the amount under the dishonoured cheques. Thirdly, it was submitted that the Courts below erred in holding that the presumption under Section 139 was not rebutted in spite of the fact that sufficient evidence was placed on record to show that the cheques were issued under duress with the intervention of a Police Officer and without any liability of the petitioner against the respondent but, on account of failure of some transaction relating to immoveable property between the brother of the petitioner and the complainant. On the other hand, justifying the conviction in the facts and circumstances of the case, the learned Advocate for the respondent No. 1 submitted that Section 27 of the General Clauses Act clearly provides for presumption of notice sent by registered post once the fact of sending such notice is established and in such cases, it is for the person disputing the service of notice to establish the fact of non-service of such notice. Placing reliance in the decision of the Apex Court in the matter of K. Bhaskaran v. Sankaran Vaidhyan Balan, reported in 1999 (8) Supreme 608 : (1999 Cri LJ 4606), the learned Advocate for the respondent No. 1 submitted that the Apex Court therein has clearly held that once a notice is dispatched by post with a correct address written on it, it is to be deemed to have been served on the sendee unless the sendee proves that it was not really served and that he was not responsible for such non-service. In the case in hand, it is not disputed that the notice sent by registered post carried correct address of the petitioner and it also had an endorsement on it to the effect that it was refused to be accepted by the petitioner. Being so, it was for the petitioner to prove by leading cogent evidence that she had neither received the said letter nor refused to accept the same when presented for service upon her and she having failed to do so, the presumption of service of the said notice upon her is available to the respondent No. 1. Drawing attention to the suggestion put to the respondent No. 1 in the course of cross-examination about the false endorsement on the envelope, it was sought to be contended that the said suggestion itself discloses admission on the part of the petitioner of an attempt to serve notice upon her. It was further contended that the contention that the notice sent was not the notice relating to the demand pursuant to the dishonour of the cheques in question, was never raised before the Courts below and in the absence of any such defence being raised, the contention is to be held as devoid of substance. As regards the subsisting liability, considering the provisions of Section 139 of the said Act, according to the learned Advocate for the respondent No. 1, there has been no attempt by the petitioner to disprove the presumpton arising under the said provision of law in spite of the fact that there is no dispute that the notice was actually sent by registered post on the address of the petitioner and that there is no substance in the contention of the petitioner that there was no subsisting liability on the day the cheques were issued and dishonoured. It is also submitted that the decision in Sridhar M.A.’s case was delivered on 27th January, 1998 whereas the decision in K. Bhaskaran’s case was delivered on 29-9-1999 besides being the fact that the decision in Sridhar M.A.’s case does not lay down any broad principle of law as such.
7. As regards first ground of challenge i.e. absence of proof of service of notice, prior to the institution of complaint as well as the second ground of challenge that the notice stated to have been served is not established to be one relating to the demand of money pursuant to the dishonour of the cheques in question, the same are required to be dealt with together. There is no dispute that a notice was sent to the petitioner prior to the institution of the complaint. Besides, both the Courts below on analysis of the evidence, have arrived at a finding that the fact that such a notice was actually sent by registered post to the petitioner was not in dispute. In other words, the fact that a notice was actually sent by registered post prior to the institution of the complaint under Section 138 of the said Act, has been clearly established. The dispute is only regarding service of such notice and that, the notice does not relate to the demand of money in relation to the dishonoured cheques. Apex Court in Sridhar M.A.’s case referred to its earlier decision in the matter of State of M.P. v. Hiralal, has held that presumption of deemed service is not a matter of course in all cases and deemed service is to be accepted in the facts of each case. The said decision nowhere speaks about absence of presumption of deemed service once the party is able to establish that the notice has been dispatched by registered post with the correct address of the sendee written on it. It only rules that presumption of demand service should not be drawn as a matter of course and should be decided based on the facts of each case. So also, the Apex Court in K. Bhaskaran’s case has held that considering the provisions contained in Section 27 of the General Clauses Act once the sender establishes the fact that the notice was dispatched by post with correct address written thereon, it should be deemed to have been served on the sendee unless he establishes that it was not really served and that he was not responsible for such non-service. In other words, once the notice is shown to have been dispatched by post and the envelope in which such notice is shown as was carrying correct address of the sendee written on it, the presumption would arise in favour of the sender to the effect that such notice was only duly served upon the sendee unless that presumption is rebutted by necessary evidence along with the fact that the sendee was not responsible for such non-service. It is not sufficient to show that the letter was not served upon the sendee but, it is necessary for the sendee to establish that it was not on account of the fault on the part of the sendee that the service could not be effected. Undoubtedly, the decision of the Apex Court is in the matter under Section 138 of the Negotiable Instruments Act. The case in hand also is relating to the offence under Section 138 of the said Act. Being so, it was primarily for the petitioner in the case in hand to rebut the presumption regarding service of notice sent to her by the respondent No. 1. It was sought to be contended that difference in numbers, one on the registration receipt and one on the envelope of the notice as well as failure to examine the postman, sufficiently rebut the presumption of service. There is no doubt that the records and more particularly, the judgments of both the Court is clearly disclose that the number on the registration receipt relating to the posting of the notice of demand by the respondent No. 1 discloses a different number from one which was found on the envelope wherein notice of demand was posted to the petitioner. But, at the same time, it is to be noted that the envelope in which the notice was sent, carried the correct address of the sendee. Added to this, as rightly pointed out by the learned Advocate for the respondent No. 1, there was a specific suggestion put to the respondent No. 1 to the effect that the endorsement of refusal of notice by the postman on the envelope was false endorsement and was got made by the respondent No. 1 in collusion with the postman. Once, it is not disputed by the petitioner that the postman either by himself or in collusion with the respondent No. 1, had made such an endorsement on the envelope, the fact that notice was sent to the petitioner stands proved beyond doubt. It also establishes the fact that the notice was bearing the correct address of the petitioner. Being so, in terms of the provisions contained under Section 27 of the General Clauses Act, there was a presumption of service of such notice on the petitioner. Whether really there was a false endorsement and whether the petitioner was absent at the residence when the postman approached her residence are the facts within the knowledge of the petitioner and were required to be established by the petitioner herself. The Courts below, in this regard, have rightly referred to Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, burden of proving that fact is upon him. Whether the petitioner was absent at her residence on 1st December, 1993 when the postman had approached her to serve the notice or not, was entirely within the knowledge of the petitioner herself. It was sought to be contended that the postman might have approached her residence in the morning hours and the evidence shows that she came to her residence at 1 p.m. only. In case of any such evidence on record, it all the more helps the prosecution rather than rendering any assistance to the petitioner accused to discharge the burden. There is no presumption that the postman must have approached the addressee during morning session only. Admittedly, there is no evidence on record to show that the postman had approached the petitioner’s residence during morning hours. There is no evidence on record to show that there is a practice in the village of serving the mail only during morning hours. So, it was entirely within the knowledge of the petitioner to prove that she was absent at her residence when the postman had approached to serve the notice and having failed to do so, the petitioner cannot blame the respondent No. 1 for non-examination of the postman. The question of respondent No. 1 examining the postman would have arisen only in case the petitioner had discharged the initial burden of proving that there was failure on the part of the respondent No. 1 to serve the notice.
8. It is contended that there is no material on record to show that even though some notice was served, that such notice was in terms of the proviso to Section 138 of the said Act. In other words, it is sought to be contended that the evidence on record does not establish that the notice sent was in fact, the notice of demand of money was in relation to the cheques which were dishonoured. Firstly, as contended by the learned Advocate for the respondent No. 1, no such point appears to have been raised in the Courts below. Secondly, it is a matter of appreciation of evidence and it is for the Court of facts to analysis the material in that regard to arrive at a correct finding. However, even perusal of the records does not support the contention on behalf of the petitioner. The testimony of the complainant-respondent No. 1 discloses that he had produced registration receipt of posting of the letter, which is marked as Exh. 41, an envelope showing address of the petitioner as well as postal endorsement of refusal thereof along with the acknowledgment card, which is marked as Exh. 40 and office copy of the notice which is a carbon copy of the notice dated 23-11-1993, which is marked as Exh. 39. Undisputedly, the Exh. 39 is the carbon copy of the original has never been disputed by the petitioner. The testimony of the complainant further discloses that at no point of time, it was even remotely suggested to the respondent-complainant by the petitioner that the notice at Exh. 39 is not one which was sent to the petitioner by the respondent No. 1 in the envelope Exh. 40. In the absence of any such defence being raised, it is too late in the day for the petitioner to contend that the respondent No. 1 has not established that the notice sent in the envelope Exh. 40 was not the notice of demand in relation to amount payable under the dishonoured cheques. At this stage, it cannot be forgotten that the respondent No. 1 has fully established the fact of posting of the letter by registered post A.D. and even the receipt in that regard has been produced. No doubt, the number differs on the receipt and the envelope, but the fact remains that the envelope carries correct address of the petitioner. The receipt also shows the address of the petitioner to be that of the sendee. It is not the case of the petitioner that she had any other transaction with the complainant wherein the complainant-respondent No. 1 had sent some other letter by registered post to the petitioner. Apparently, difference in number is a mistake on the part of postal authorities. This clearly shows that there is no substance in the contention on behalf of the petitioner that the respondent No. 1 has failed to establish that the notice sent by the envelope in question was not the notice in relation to demand of money pertaining to the cheques which were dishonoured.
9. As regards the contention regarding absence of subsisting liability of the petitioner and that, therefore, no offence is committed on account of dishonour of the cheques in question, undisputedly, the cheques were issued by the petitioner, cheques bear signature of the petitioner, presumption under Section 139 of the said Act is in favour of the respondent. The contention that the cheques were obtained under duress and were in relation to some transaction pertaining to the immoveable property between the brother of the petitioner and complainant, the Courts below on analysis of the evidence, have arrived at finding that the petitioner has failed to prove any nexus between the said alleged transaction and the circumstances under which the cheques in question were issued, The finding is based on assessment of evidence and is a finding of fact besides being concurrent finding by both the Courts below. That apart, the records nowhere disclose any link between the alleged transaction and the cheques in question. There is absolutely, no evidence produced in that regard by the petitioner. If the petitioner wanted to believe her contention, it was for the petitioner to establish the said fact and having failed to do so, no grievance can be made in respect of absence of liability.
10. At this stage, it is sought to be argued that in the facts and circumstances, the fine imposed is exorbitant and not commensurate to the guilt of the petitioner. This point was never raised either before the Courts below or in the course of argument in the matter. Such an argument is sought to be raised only after delivery of the decision not to interfere in the matter. In any case, considering the facts and circumstances of the case, do not find any justification for interference in the fine imposed by the Court below. It can neither be said to be exorbitant nor disproportionate to the offence committed by the petitioner.
11. In the result, petition fails and is hereby dismissed. Rule is discharged. Interim relief stands vacated. The amount deposited at the time of grant of interim relief, to be paid to the respondent No. 1 after a period of two months.