Research › Search › Judgment

Madras High Court · body

2007 DIGILAW 781 (MAD)

Asif Akbani v. P. K. Mani

2007-03-02

R.REGUPATHI

body2007
Judgment :- The petitioner is an accused for the offence punishable under Section 138 of the Negotiable Instruments Act. Learned XIII Metropolitan Magistrate, Egmore, Chennai has taken cognizance of the case in C.C.No.9180 of 2003 and issued process. At this stage, the petitioner/accused has preferred the present petition to quash the proceedings. The statutory notice issued to the petitioner has been returned unserved with a postal endorsement. The learned counsel for the petitioner contended that such a return should not be construed as deemed service and therefore, the cognizance of the case taken by the learned Magistrate is erroneous and sought to quash the proceedings. .2. Per contra the learned counsel for the respondent/complainant submits that statutory notice has been issued and since the petitioner/accused was not available in the address, it was returned with an endorsement "addressee long absent and return to sender". The postal endorsement has been made in the returned cover with acknowledgment card and the same has been marked as Document No.4 in the private complaint. As per the requirement under the Act, since a statutory notice has been despatched to the petitioner, it must be construed that the complainant has complied with the requirements and in such circumstances, the cognizance of the case taken by the learned Magistrate is valid and any other contentions in this regard is a matter for trial and the same may have to be adjudicated before the trial Court. .3. Learned counsel appearing for the petitioner relied on a case reported in ( 1993(3) Crimes 175 ) M.Sundaram Vs. C.M.Ramraj, wherein it has been laid as follows: ."4.... Section 138(c) of the Negotiable Instruments Act, 1881, does not contemplate constructive notice. Hence written demand notice returned with the postal endorsement "not found" cannot be said to have complied with the provisions of Section 138(c) of the Act. If constructive notice has been contemplated under the sub-Section by the Legislature, sufficient phraseology would have been utilised for such a purpose. The language used therein, namely, "receipt of the said notice", unambiguously points out actual receipt of notice." .4. Per contra the learned counsel for the respondent/complainant relied on a case reported in 2004(5) CTC 265 (S.C.) (V.Raja Kumari Vs. The language used therein, namely, "receipt of the said notice", unambiguously points out actual receipt of notice." .4. Per contra the learned counsel for the respondent/complainant relied on a case reported in 2004(5) CTC 265 (S.C.) (V.Raja Kumari Vs. P.Subbarama Naidu and another) ."Complainant can send notice for doing his part of giving notice – Once notice is despatched by complainant his part is over – On the part of the payee he has to make demand by "giving a notice" in writing and that is the only requirement to complete the offence – Effect of return of notice has to be considered during trial, as burden is on complainant to show service of notice – where material is brought to show that there was false endorsement about non-availability of notice, inference that is to be drawn has to be judged on the back ground facts of each case". 5. I have heard the submissions made and perused the materials. At para-6 of the complaint, it has been stated as follows: "Immediately on receipt of the intimation, he sent a lawyers notice dated 05.04.2003, by registered post. In the said notice the accused was called upon to pay the said cheque amount of Rs.10,00,000/- within 15 days from the date of receipt of the said notice. The complainant also submits that another copy of the lawyers notice was sent by Ordinary Post on the same day. The accused having full knowledge about the cheque dishonoured and with criminal intention he refused to receive the lawyers notice even after due information is given to him by postal authorities." .6. The return cover with acknowledgment card has been marked as 4th document in the complaint. On a perusal of the endorsement, it reads as follows: ."addressee long absent and returned to the centre" .7. The judgment relied on by the counsel for the petitioner was overruled by the same learned Judge. The Honble Judge of whom I respect and got great admiration found fault with and reprimanded himself in the subsequent judgment. The observation made by the Honble Judge reminded me of a great Tamil poet Seethalai Sathanar who punished by stabing himself on his head with his pen which resulted in septecema scalp. The Honble Judge of whom I respect and got great admiration found fault with and reprimanded himself in the subsequent judgment. The observation made by the Honble Judge reminded me of a great Tamil poet Seethalai Sathanar who punished by stabing himself on his head with his pen which resulted in septecema scalp. The observation made by the great Judge, His Lordship Justice Janarthanam is as follows: ."This sort of a thinking, vistavision and clairvoyan mental eye was not there, when I had the occasion to interpret the provisions, as above, in R.M.Sundaram V. C.M.Ramraj, (1994) 1 L.W.(Crl.) 369, and that perhaps was the reason for me to have held then that receipt of notice contemplated therein cannot be any one other than actual receipt of notice and the decision so rendered, in the light of the reasoning, as now given by me in these actions, will not therefore hold the field any further." 8. In 1995 MLJ crl. 664 (B.Kannan Vs. Kothandan) the overruled version is as follows: "The purpose for which the issuance of the notice, as contemplated therein, was to put the drawer to the knowledge of the dishonour of the cheque by the bank issued by him and requiring him to make necessary arrangements for payment of the amount of money covered by the cheque, within the statutory period of notice and nothing further. The knowledge of the drawer as the the dishonour of the cheque issued by him by the banker is inferable from various contumacious circumstances relatable to the conduct of the drawer and such inferential aspect can very well be understood from the scheme of the Amending Act itself....... A duty, by way of implication, is cast upon him to make himself available in his ordinary place of residence or usual course of business or to make arrangements, in case he could not be so available, for receipt of intimation from the payee or holder in due course, as respects the dishonour of the cheque it any, issued by him and a well to make arrangements for complying with the demand so made, as had been contemplated by Clauses (b) and (c) of the proviso to Section 138 of the Negotiable Instruments Act. Any failure on his part to do or being available, refused to receive such notice or complying with the same, will have to be presumed to be an act evasion of such a duty so cast upon him. From such evasion, it is but legitimate to presume or infer that he had full knowledge of the dishonour of the cheque issued by him and with such knowledge he wilfully or wantonly failed to comply with the demand so made, within the statutory period stipulated therein.... In the event of his non-availability, for whatever reason, at the time of delivery of such notice sent either by post or by telegram or arranged to be delivered in person or by special messenger, then the date of endorsement by postman or the person, to whom the said notice was entrusted for delivery to the drawer, will have to be taken to be the date of service on him, as the date when the drawer could have had full knowledge of the contents thereof and after the expiry of fifteen days therefrom, naturally the cause of action will accrue, syncronising with the date of commencement of the period of limitation and enuring for a period of thirty days therefrom for launching of a prosecution. But proof of the same, could be possible or plausible, by adduction of evidence only during the course of trial before the competent Court of jurisdiction. This sort of an interpretation alone will foster and achieve the object and the purpose of Act, as intended by the Legislature and avoid creation of a non-sense situation." 9. The learned counsel for the petitioner strongly objected to rely on the subsequent judgment of the same Judge, who overruled his own opinion. The earlier judgment has been followed by other judges of this Honble High Court. Even if the Judge differ from his own earlier opinion the Judge must refer the same to a larger Bench. A judgment delivered is not a judgement of that particular Judge. But it is a judgement of the High Court. To substantiate his contention relied on a judgement of Supreme Court reported in ( AIR 2005 SC 752 ) Central Board of Dawoodi Bhore Community and another Vs. State of Maharashtra and another. 10. Without going into this dispute, I am of the considered view that the second judgement cited supra as 1995 MLJ Crl. To substantiate his contention relied on a judgement of Supreme Court reported in ( AIR 2005 SC 752 ) Central Board of Dawoodi Bhore Community and another Vs. State of Maharashtra and another. 10. Without going into this dispute, I am of the considered view that the second judgement cited supra as 1995 MLJ Crl. 664 is good law, in view of the recent judgment of the Supreme Court reported in (2006(2) LW Crl. 909) D.Vinod Shivappa Vs. Nanda Belliappa, wherein it has been clarified: "The question is whether in a case of this nature, where the postal endorsement shows that the notice could not be served on account of the non availability of the addressee, a cause of action may still arise for prosecution of the drawer of the cheque on the basis of deemed service of notice under clause (c) of proviso to Section 138 of the Act. In our view this question has to be answered by reference to the facts of each case and no rule of universal application can be laid down that in all cases where notice is not served on account non-availability of the addressee, the Cuort must presume service of notice. The question as to whether there was deemed service of notice, in the sense that the endorsement made on the returned envelope was a manipulated and false endorsement, is essentially a question of fact, and that must be considered in the light of the evidence on record." 11. Learned Magistrate while taking cognizance of the case has taken into consideration the service of notice and the return of the same with an endorsement made by the postal authorities. I am of the considered view that the learned Magistrate is perfectly correct in taking cognizance of the case, since a statutory notice was sent to the address of the petitioner and it was returned with postal endorsement. However, the allegation made in the complaint that the accused refused to receive the lawyers notice even after due information given to him by postal authorities are matters for trial. 12. Therefore, the petition filed by the petitioner/accused to quash the proceedings is dismissed. However, the petitioner is at liberty to take up all the grounds including the service of notice before the trial Court during the course of the trial. 13. 12. Therefore, the petition filed by the petitioner/accused to quash the proceedings is dismissed. However, the petitioner is at liberty to take up all the grounds including the service of notice before the trial Court during the course of the trial. 13. Learned counsel for the respondent submits that the complaint has been filed during 2003, and seeks for a direction for early disposal of the case. Accordingly, the learned Magistrate is directed to give priority to this case and complete the trial within a period of six months. Consequently, connected Crl.M.P is closed.