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2006 DIGILAW 616 (MAD)

Pavulmanickam v. M. S. Jeyachandran

2006-03-03

R.REGUPATHI

body2006
Judgment :- 1. The learned Judicial Magistrate, Thiruvaiyaru, passed an order in C.M.P. No. 639/2006 on 6.2.2006, returning the petitioner's complaint without taking cognizance. Aggrieved against that, the petitioner has filed the present Criminal Revision Petition. The impugned order has been passed on the following grounds: (a) At the time of Re-presentation of the complaint/additional grounds have been raised. (b) The statutory notice has been returned as unserved, as door locked for several days and it cannot be construed as constructive notice. (c) There is contradictory plea taken by the complainant as to why and under what circumstances cheque has been given by accused. 2. The learned counsel for the petitioner submits that there is no irregularity in the private complaint and the reasons given by the learned Magistrate in dismissing the private complaint at the initial stage itself is unsustainable and liable to be set aside. The learned counsel for the petitioner relied on the judgment of the Supreme Court in V. Raja Kumari v. A Subbarama Naidu & Anr, 2004 (5) CTC 268 : 2004 (2) MWN (Cr.) DCC 6 (SC). The relevant portion of the said Judgment is extracted below: "16. The object of notice is to give a chance to the drawer of the cheque to rectify his omission and also to protect an honest drawer. Service of notice of demand in Clause (b) of the proviso to Section 138, is a condition precedent for filing a complaint under Section 138 of the Act. In the present appeal there is no dispute that notice was in writing and this was sent within fifteen days of receipt of information by the appellant-Bank regarding return of cheques as unpaid. Therefore, the only question to be examined is whether in the notice there was demand for payment. (See Central Bank of India and Another v. Saxons Farms and others, 1999 (3) CTC 611 : 1999(8) SCC 221 ). 17. At this juncture it is relevant to take note of order passed by this Court in State of M.P. v. Hiralal and Others, 1996 (7) SCC 523 . It was, inter alia, noted as follows: "In view of the office report, it would be clear that the respondents obviously managed to have the notice returned with postal remark "not available in the house", "house locked" and "shop closed" respectively. It was, inter alia, noted as follows: "In view of the office report, it would be clear that the respondents obviously managed to have the notice returned with postal remark "not available in the house", "house locked" and "shop closed" respectively. In that view it must be deemed that the notices have been served on the respondents. 18. In Madhu v. Omega Pipes Ltd., 1994 (1) ALT (Crl.) 603 (Ker.), the scope and ambit of Section 138, Clauses (b) and (c) of the Act were noted by the Kerala High Court and Justice R.T. Thomas (as His Lordship was then) observed as follows: "In Clause (c) of the proviso the drawer of the cheque is given fifteen days from the date 'of receipt of said notice' for making payment. This affords clear indication that 'giving notice' in the context is not the same as receipt of notice. Giving is the process of which receipt is the accomplishment. The payee has to perform the former process by sending the notice to the drawer in his correct address, if receipt or even tender of notice is indispensable for giving the notice in the context envisaged in Clause (b) an evader would successfully keep the postal article at bay at least till the period of fifteen days expires. Law shall not help the wrong doer to take advantage of his tactics. Hence the realistic interpretation for the expression 'giving notice' in the present context is that, if the payee has dispatched notice in the correct address of drawer reasonably ahead of the expiry of fifteen days, it can be regarded that he made the demand by giving notice within the statutory period. Any other interpretation is likely to frustrate the purpose for providing such a notice." The learned counsel for the petitioner further submitted that in so far as the other reasons for dismissal are matter, which has to be decided at the time of trial. 3. I have carefully perused the material available on record and heard the submissions made. In view of the above judgment of the Supreme Court and considering the facts and circumstances of the case, the impugned order is set aside and the revision is allowed as prayed for. The learned Judicial Magistrate, Thiruvaiyaru, is directed to take the petitioner's complaint on his file and proceed with in accordance with law.