Sri Raj Kumar Agarwal. -vs- 1. Smti. Anu Singhania, 2. State of Assam.

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1 THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) Criminal Appeal 57/2009 Sri Raj Kumar Agarwal -vs- 1. Smti. Anu Singhania, 2. State of Assam. BEFORE HON BLE MR. JUSTICE HITESH KUMAR SARMA Advocates for the Appellant Advocate for the Respondent : Mr. N Sarma, Mr. D Kothari, Mr. G Khandelia & Mr. K Deka. : Mr. N K Kalita. Date of hearing & Judgment : JUDGMENT AND ORDER (Oral) This is an appeal, against the judgment, passed by the learned Additional Sessions Judge (FTC) No. 2, Kamrup (M), Guwahati, in Criminal Appeal No. 75/2006, allowing the appeal filed by the respondent against the judgment and order dated , passed by the learned Sub-Divisional Judicial Magistrate No. 2, Kamrup (M), Guwahati, in CR Case No. 869 C /2004 convicting the Page 1 of 5

2 accused appellant under Section 138/142 of the Negotiable Instrument Act, and sentencing him to pay the cheque amount of Rs. 1,00,000/- together with a sum of Rs. 50,000/- as interest and the cost of the litigation, in default to suffer Simple Imprisonment for 1 (one) year. 2) The case of the present appellant is that he filed the case No. 869 C /2004 under Section 138 of the Negotiable Instrument Act, against the respondent No. 1 of this petition on the facts that the present respondent No. 1 borrowed an amount of Rs. 1,00,000/- from the present appellant and issued cheque on in discharge of his liability for payment of the borrowed amount of Rs. 1,00,000/-. The cheque was drawn in the Pragjyotish Gaoliya Bank, Fancy Bazar, Guwahati. He deposited the cheque on with his Bank, i.e. Allahabad Bank, Lakhtokia Branch, for collection. But, on , he was informed by the bank, vide Memo dated that the banker of the accused respondent, returned the cheque dishonored on the ground insufficient fund. Thereafter, on , the present appellant complainant sent a notice to the accused respondent demanding payment of the cheque amount by currier service and despite receipt of the notice aforesaid, the accused respondent failed to discharge his liability/debt by making payment of the aforesaid amount. Hence the case. 3) The learned trial court, after full trial of the case in accordance with the procedure prescribed by law, delivered the judgment, convicting the accused Page 2 of 5

3 respondent No. 1, vide judgment in CR Case No. 869 C /2004 convicting and sentencing the accused respondent as indicated above. 4) Against this judgment of the learned trial court of Sub-Divisional Judicial Magistrate (S) No. 2, Guwahati, the accused respondent preferred an appeal before the learned Additional Sessions Judge No. 2, Kamrup (M), Guwahati, vide Criminal Appeal No. 75/2006. The learned trial court, vide the judgment dated , passed in the aforesaid criminal appeal, reversed the order of conviction and sentence by the learned trial court and acquitted the accused respondent. 5) I have perused the judgment, passed by the learned trial court as well as the judgment, passed by the learned appellate court of Additional Sessions Judge No. 2, Kamrup (M), Guwahati. It appears from the impugned appellate judgment, dated , that the appellate court recorded almost all the findings recorded by the learned trial court except the factum of service of notice upon the accused respondent as correct. The learned lower appellate court appears to have referred to Ext.4, the Office copy of the notice, sent by the present appellant to the accused respondent on through currier service. Ext.5, as appears from the judgment, is the receipt issued by the currier service indicating receipt of the notice by the currier service for dispatching the same to the accused respondent. Ext.6 is the receipt of the notice by the accused respondent. The learned lower appellate court has referred to Ext.6 and stated in the judgment impugned that the Ext.6, notice, was not received directly by Page 3 of 5

4 the accused respondent and somebody else received the same for him who is not proved to be either his employee or power of attorney holder. 6) The learned counsel for the present appellant before this court has submitted that once the notice sent, receipt thereof is not required to be proved by the complainant appellant. The learned counsel for the present appellant has also referred to a decision of Hon ble Supreme Court in the case of C.C. Alvai Haji vs- Palapetty Muhammed reported in (2007) 6 Supreme Court Cases 555, and submitted that in the event the accused respondent did not receive the notice, he ought to have approached the court, on his appearance, showing that he did not receive notice which the accused respondent did not do in the instant case. Therefore, the receipt of notice, when dispatched in appropriate manner, cannot be taken to negate the claim of the appellant complainant as has been done in the instant case. 7) On consideration of the facts of the case, reading both the judgments of the trial court and the lower appellate court of Additional Sessions Judge, and on reading the materials available before this court, this court is of the considered view that the question of notice, as indicated above, is required to be re-looked into by the learned lower appellate court and to record a finding about the validity of service of notice as per the law as was prevailing at that point of time. 8) In view of the above, the appeal is remanded back to the learned Sessions Judge with a direction to hear both the parties on the issue of service of notice as Page 4 of 5

5 indicated in the foregoing paragraphs and to decide the issue and dispose of the appeal afresh. 9) The appeal is disposed of accordingly. 10) Send back the LCR along with copy of this judgment. JUDGE Basumatary Page 5 of 5