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2009 DIGILAW 2635 (MAD)

Govindan v. Anand Impex, rep. by T. Premanand

2009-07-24

ARUNA JAGADEESAN

body2009
Judgment :- The petitioner who is facing trial before the Learned Judicial Magistrate, Mettupalayam in C.C. No.148 of 2003 for the alleged offence punishable under Section 138 of the Negotiable Instruments Act on the complaint filed by the respondent seeks to quash the said proceedings. 2. The brief facts for the purpose of this petition is given hereunder; The petitioner had purchased Potatoes and he owed a sum of Rs.2,00,000/- and in discharge of the said liability he issued a cheque dated 211. 2002 for a sum of Rs.2,00,000/- drawn on Canara Bank, Kasturba Nagar Branch, Chennai. The respondent had presented the cheque for collection on the same day with his bankers namely Tamil Nadu Mercentile Bank Limited, Mettupalayam and the same had been returned unpaid with an endorsement “Funds insufficient”. It was intimated to him by his bankers on 16.03.2003. Thereafter, the respondent has issued a lawyer’s notice demanding the payment of the cheque amount on 30.03.2003. According to the respondent/complainant that the said notice was received by the petitioner but railed to pay the cheque amount within 15 days from the date of receipt of the said notice and hence, the complaint. 3. The main contention of the petitioner is that in the complaint as well as in the sworn statement of the respondent, it is categorically stated that the petitioner has received the statutory notice but in the chief-examination of the respondent, he had deposed that the petitioner/accused had refused to receive the notice and the returned cover had been marked as Ex.P-5, which is contrary to the statement made in the complaint and in such view of the matter it cannot be said that there was a valid statutory notice as required under Section 138 of the Negotiable Instruments Act. 4. Mr. M. Vijayakumaran, the learned counsel for the petitioner submits that the notice alleged to have been sent is not in conformity with the provisions of Section 138 of the Negotiable Instruments Act, as the complaint does not indicate the date of receipt of the notice and the same would be deemed to be a defective and illegal one. 4. Mr. M. Vijayakumaran, the learned counsel for the petitioner submits that the notice alleged to have been sent is not in conformity with the provisions of Section 138 of the Negotiable Instruments Act, as the complaint does not indicate the date of receipt of the notice and the same would be deemed to be a defective and illegal one. He would contend that the complainant himself is not sure of service of notice and the contradictory statement made by him would prove that there is no sufficient material to show the actual date of service of demand notice ad therefore, it cannot be said that cause of action had arisen on the above facts. .5. The learned counsel for petitioner placed reliance on the decision of the Jammu and Kashmir High Court reported in 2003 (20 MWN (Crl.) 49 (J & K) wherein, it is stated that the date of actual service of complainant’s demand notice on accused is the crucial date for the cause of action for an offence punishable under Section 138 of the Act. It is held that the date of receipt of notice is the significant factor so as to accrue a cause of action to the complainant to launch a criminal prosecution within the statutory period prescribed under Section 142(b) of the Act. 6. On the other hand, Mr. M. Ramesh, learned counsel for the respondent would contend that it is not mandatory to mention the date of receipt of the notice in the complaint and it is sufficient if the notice of demand is dispatched to the drawer on the correct address and in this case, the complaint having dispatched the notice on 30.03.2003 to the correct address of the petitioner/accused, the service shall be presumed to have been made on the drawer. He would submit that the averment made in the complaint that the accused, had received the notice is only on the assumption drawn from the returned postal cover with an endorsement “unclaimed” and that would not rebut the presumption about the service of notice. 7. The factual matrix of this case is that the notice send by the respondent/complainant had been returned as “unclaimed” and the returned postal cover is marked as document during the course of the evidence of PW-1 in his chief-examination. 7. The factual matrix of this case is that the notice send by the respondent/complainant had been returned as “unclaimed” and the returned postal cover is marked as document during the course of the evidence of PW-1 in his chief-examination. It is no doubt true that the complainant had stated in the complaint and in the sworn statement that the accused had received the notice, but merely on the said ground it cannot be held that service of notice in this case is not valid. 8. In. K. Bhaskaran Vs. Sankaran Vaidhyan Balan reported in 1999 (7) SCC 510 it has been held by the Hon’ble Supreme Court that the context of Section 138 (b) of the Negotiable Instruments Act invites a liberal interpretation favouring the person who has the statutory obligation to give notice under the Act because he must be presumed to be the loser in the transaction and provision itself has been made in his interest and if a strict interpretation is asked for, that would give a handle to the trickster cheque drawer. It is also well settled that once notice has been sent by registered post with acknowledgment due is a correct address, it must be presumed that the service had been made effective. .9. This Court in Guruvinder Kaur Vs. Surya Agencies reported in (2008) 2 MLJ (Crl) 257 has held that cumulative reading of complaint, sworn statement and supportive materials produced by the complainant if prima facie show that a case under Section 138 of the Act has been made out, then even if a part of the ingredients is found lacking in the complaint launched against the accused for an offence under Section 138 of the Negotiable Instruments Act, the trial Court is empowered to peruses the materials and weigh to see whether prima facie case is made out. On a combined reading of the compliant, sworn statement and chief-examination of PW-1 in this case it is seen that the registered cover has been returned as “unclaimed” and the same is evident from the cover returned which is also marked as exhibit in the trial court. 10. In V. Rajakumari Vs. On a combined reading of the compliant, sworn statement and chief-examination of PW-1 in this case it is seen that the registered cover has been returned as “unclaimed” and the same is evident from the cover returned which is also marked as exhibit in the trial court. 10. In V. Rajakumari Vs. P. Subbarama Naidu and Others reported in 2004 (8) SCC 774 the Hon’ble Apex Court reiterated the same principle and held that the statutory notice under Section 138 and 142 of the Negotiable Instruments Act sent to the correct address of the drawer but returning with an endorsement “Door Locked”, “intimation delivered”, “refused” must be presumed to be served to the drawer. 11. In C.C. Alavi Haji Vs. Palapettyb Muhammed reported in AIR 2007 SCW 3578 , the Hon’ble Supreme Court has held that it is not necessary to ever in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved. It is held that 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. 12. The above aspect have been highlighted and reiterated by the Apex Court in a recent decision in the case of D. Vinod Shivappa Vs. Nanda Belliappa reported in 2006 (6) SCC 456 elaborately dealt with the situation where the notice could not be served on the addressee for one or the other reason, such as, his non-availability at the time of delivery or premises remaining locked on account of his having gone elsewhere etc., it was observed that if in each such case, the law is understood to mean that there has been no service of notice, it would completely defeat the very purpose of the Act. 13. In the instant case, the returned cover had been marked which shows that the notice has been returned as “unclaimed” and it would be deemed to be an effective and proper service and it would not in any way invalidate the service merely on the fact that mistakenly an averment is made that the notice has been served. 14. 13. In the instant case, the returned cover had been marked which shows that the notice has been returned as “unclaimed” and it would be deemed to be an effective and proper service and it would not in any way invalidate the service merely on the fact that mistakenly an averment is made that the notice has been served. 14. For the reasons stated above, I do not find any merit in the submissions made by the learned counsel for the petitioner and the Criminal Original Petition stands dismissed. Consequently, connected criminal miscellaneous petition is dismissed.