Research › Search › Judgment

Madras High Court · body

2017 DIGILAW 3577 (MAD)

P. Packiaraj v. Murugan Stores T. T. Kaliaperumal

2017-11-03

A.D.JAGADISH CHANDIRA

body2017
ORDER : 1. The criminal revision has been filed by the petitioner / accused, against the Judgment passed by the learned Additional Sessions Judge, (Fast Track Court), Virudhunagar in C.A.No.43 of 2007, dated 17.12.2007, which modified the sentence imposed by the learned Judicial Magistrate No.I, Virudhunagar in C.C.No.35 of 2005, dated 22.05.2007. 2. The learned Judicial Magistrate No.I, Virudhunagar, by Judgment, dated 22.05.2007, convicted and sentenced the petitioner / accused to undergo six months simple imprisonment and also to pay Rs.5,000/-, in default to suffer simple imprisonment for three months for the offence under Section 138 N.I.Act and on appeal, the Judgment of the learned Judicial Magistrate No.I, Virudhunagar, was confirmed, however, the sentence was modified by the learned Additional Sessions Judge (Fast Track Court), Virudhunagar in C.A.No.43 of 2007, by Judgment, dated 17.12.2007, sentencing the petitioner to undergo six months imprisonment and to pay total compensation amount of Rs.72,000/- in default to suffer three months simple imprisonment. 3. The petitioner is the accused in C.C.No.35 of 2005, on the file of the learned Judicial Magistrate No.I, Virudhunagar. The respondent/ complainant had filed a private complaint against the petitioner under Section 200 Cr.P.C., for the offence under Section 138 r/w 142 of the Negotiable Instruments Act. The averment in the private complaint was that the respondent / complainant is a Partnership Firm at Puvanagiri and was conducting business in the name of Murugan Stores at Virudhunagar through its power agent and thereby, they had authorised the Power Agent to represent them. The petitioner / accused was conducting his business under the name and style of Srinivasa Traders at Gandhi Nagar, Virudhunagar, and thereby, the petitioner / accused and the respondent / complainant had business relationship and under such relationship, on 24.03.2004, the petitioner / accused had purchased green-gram for the value of Rs.1,47,000/- and made cash payment of Rs.80,000/- and towards the balance liability of Rs.67,000/-, the petitioner / accused had issued a cheque in favour of the respondent / complainant on 25.10.2004. The cheque was presented by the respondent / complainant for collection on 26.10.2004 and the same was returned by the Bank with an endorsement ?Insufficient Funds? The cheque was presented by the respondent / complainant for collection on 26.10.2004 and the same was returned by the Bank with an endorsement ?Insufficient Funds? and thereafter, on 26.11.2004 the respondent / complainant had issued a legal notice to the petitioner / accused and the same was returned back with an endorsement “intimation delivered” and “unclaimed” and therefore, after due statutory compliance under the Negotiable Instruments Act, the complaint was laid. 4. Before the Trial Court, the respondent / complainant had examined three witnesses as P.Ws.1 to 3 and marked twelve documents as Exs.P1 to P12 and the petitioner / accused had examined one witness as R.W.1 and no document was marked on his side. 5. P.W.1 / Paulpandian, the Power Agent of the respondent / complainant in his evidence, had deposed that he is the Power Agent of Murugan Stores at Virudhunagar and he was running the business in the capacity as its agent. The petitioner / accused was conducting dhall business under the name and style of Srinivasa Traders at Virudhunagar and that on 24.03.2004 the petitioner / accused had purchased green-gram for the value of Rs.1,47,000/- from the respondent / complainant and out of which, he had paid cash of Rs.80,000/- and towards the balance amount he had issued a cheque for Rs.67,000/-, dated 25.10.2004. The cheque was presented with their bankers and was returned with endorsement “Insufficient Funds”. Thereafter, legal notice was issued to the petitioner / accused and the same was duly served on the petitioner / accused and that he failed to repay the amount. Thereby, by authorizing the Power Agent through Ex.P.1, the respondent / complainant had presented the complaint. Ex.P2 is the receipt for supply of Green-gram. Ex.P3 is the cheque issued by the petitioner / accused in favour of the respondent / complainant. Ex.P4 is the return memo issued by the Bank. Ex.P5 is the Challan. Ex.P6 is the Bank advice. Ex.P7 is the copy of the Advocate notice. Ex.P8 is the postal receipt for issuing notice through Registered Post. Ex.P9 is the returned cover. Ex.P10 is the true photocopy of the deed of agreement and Ex.P11 is the photocopy of the acknowledgement by the Firm. 6. Ex.P5 is the Challan. Ex.P6 is the Bank advice. Ex.P7 is the copy of the Advocate notice. Ex.P8 is the postal receipt for issuing notice through Registered Post. Ex.P9 is the returned cover. Ex.P10 is the true photocopy of the deed of agreement and Ex.P11 is the photocopy of the acknowledgement by the Firm. 6. P.W.2 / Thiru.Mahendran, Manager of Canara Bank, in his evidence, had deposed that the cheque / Ex.P3 was submitted for collection to the Bank and the same was returned with the endorsement “Insufficient Funds”. On the date of presentation of the cheque, the petitioner / accused was having Rs.1198.50 in his account. The statement of accounts relating to the account of the petitioner / accused is Ex.P12, however, during cross- examination, P.W.2 had deposed that he was not sure that the signature in the cheque was that of the petitioner / accused. 7. P.W.3 / Thiru.Pandian, who is one of the partners of Murugan Traders, corroborated the evidence of P.W.1 regarding authorization given to P.W.1 and about the business transaction with the petitioner / accused. 8. When the petitioner / accused was questioned under Section 313 (1) (b) Cr.P.C about the incriminating evidence and the circumstances found against him from the evidence adduced by the respondent / complainant, he denied the evidence and had examined one Veilraj as D.W.1. 9. The evidence of the defence witness / D.W.1 is that he is a resident of Door No.1/4646, Gandhi Nagar in Pandian Nagar since 2003 and that the petitioner / accused was not residing as his neighbour since 2003 and that he had shifted his residence to Virudhunagar Town. 10. After analysing the evidence available on record the learned Judicial Magistrate No.I, Virudhunagar, found the petitioner / accused guilty under Section 138 of the Negotiable Instruments Act and convicted and sentenced him to undergo six months simple imprisonment and also to pay Rs.5,000/-, and in default, to suffer simple imprisonment for three months and the said sentence was modified by the learned Additional Sessions Judge (Fast Track Court), Virudhunagar in C.A.No.43 of 2007, by enhancing the fine amount from Rs.5,000/- to Rs.72,000/-. Therefore, aggrieved over the conviction and sentence, the petitioner / accused has preferred the present revision. 11. Therefore, aggrieved over the conviction and sentence, the petitioner / accused has preferred the present revision. 11. Mr.M.Ramu, learned legal aid counsel appearing for the petitioner / accused assailed the Judgments of both the Courts below on the ground that the courts below failed to consider the evidence of P.W.2 / Manager of Canara Bank, who could not say that the signature in Ex.P3 (disputed cheque) is that of the petitioner / accused and that when the signature in the cheque is not proved to be of the petitioner / accused, he is entitled to be acquitted. Yet another ground raised by the learned counsel for the petitioner / accused is that the legal notice was not duly and properly served on the petitioner / accused and that being so, the complaint had to be dismissed for non-compliance of Section 138(b) of the N.I.Act. It was the contention of the learned counsel for the petitioner / accused that the respondent / complainant had sent notices to two different addresses, viz., one was sent by Registered Post and another was sent by certificate of posting and that the notice sent by Registered Post was returned as ?Intimation delivered? and ?Unclaimed? and no proof was let in to prove the service of notice by Certificate of posting and thereby, the requirements of Section 138(b) of the Negotiable Instruments Act not being complied with, the complaint ought to have been dismissed, when the notice had been returned as ?Unclaimed. It was the further submission of the counsel for the petitioner / accused that, on the other hand, the petitioner/accused had let in evidence by way of defence witness to prove that he has not resided in the premises bearing Door No.1/ 4646, Gandhi Nagar in Pandian Nagar since 2003 and thereby, when no material has been let in by the respondent / complainant to disbelieve the evidence of D.W.1, the Courts below ought to have given a finding that the legal notice was not served and ought to have have acquitted the petitioner / accused. 12. 12. The learned counsel for the petitioner / accused in support of his contention that the notice was returned only with an endorsement 'not claimed' and thereby, it cannot be construed that the notice is deemed to have been served on the petitioner /accused and thereby, the benefit of doubt should be given to him, placed reliance upon the Judgment of this Court in Crl.A.No.22 of 1998, dated 11.03.2004, in Nagasubramanian Vs. M/s.Hope Knitting Home and others, wherein it has been held as follows: “15.In my view the return of postal cover as “Intimated Unclaimed” by itself would not amount to constructive notice when it is not averred by the Complainant in the complaint that the Accused is evading the service. Although, in appropirate cases, deemed service is to be accepted by the Court such presumption of deemed service is not a matter of course in all cases. To raise the presumption of deemed notice, there should be clear averment in the complaint that the appellant/complainant had sent the statutory notice on deemed intimating the dishonour of cheque and that the respondents/accused were evading the service. In the absence of such averment, no such presumption of deemed notice could be raised. In 1993 MWN (D.C) 127 (Susamma v. Rajendraw) it is held that there may be cased where notice is returned unclaimed on account of the deliberate evasion by the accused when the postman tendered the same. Where it is proved that, the notice was returned 'unclaimed' due to the evasion by the accused when tendered at the correct address that can be treated as service. The general burden to prove the prosecution case, since rests with the complainant, it is necessary for the complainant to prove the facts constituting the sending of notice and its receipt. The tender of the notice by the postal peon at the address of the accused has to be proved and if established that the same could not be actually served due to the culpable default or deliberate evasion of the accused, then it would constitute ?receipt of notice.? The burden to establish those facts rests with the complainant.? 13. The tender of the notice by the postal peon at the address of the accused has to be proved and if established that the same could not be actually served due to the culpable default or deliberate evasion of the accused, then it would constitute ?receipt of notice.? The burden to establish those facts rests with the complainant.? 13. To fortify the above submission regarding service of notice the counsel for the petitioner / accused also relied upon the Judgment of the Kerala High Court reported in 1993 0 Supreme(Ker)89 [Smt.Sosamma vs. Rajendran and others], wherein it has been held as follows: “9.Now, it is necessary to see whether a notice when returned with the endorsement “not-claimed” would be sufficient service for the purpose of S.138 of the Act. There may be cases where notice is returned unclaimed on account of the deliberate evasion by the accused when the same was tendered by the post man. With due regard to the principles laid down in Wazir Jaivir Chand's case, AIR 1989 SC 630 where it is proved that, the notice was returned “unclaimed” due to the evasion by the accused when tendered at the correct address that can be treated as service. The general burden to prove the prosecution case, since rests with the complainant, it is necessary for the complainant to prove the facts constituting the sending of notice and its receipt. The tender of the notice by the postal peon at the address of the accused has to be proved and the same could not be actually served due to the culpable default or deliberate evasion of the accused, then the same would constitute “receipt” of notice. The burden to establish those facts rests with the complainant.” 14. The learned counsel for the petitioner / accused submitted that there was a burden cast upon the respondent / complainant to prove his case by cogent evidence and that he need not get into the box to prove his case and in support of his contention, he has placed reliance upon the decision of the Honourable Supreme Court in Narayan Menon @ Mani,M.S. vs. State of Kerala, reported in 2006 (3) CTC 730, wherein it has been held as follows: “41. If for the purpose of a civil litigation, the defendant may not adduce any evidence to discharge the initial burden placed on him, a 'fortiori' even an accused need not enter into the witness box and examine other witnesses in support of this defence. He, it will bear repetition to state, need not disprove the prosecution case in its entirety as has been held by the High Court.” 15. Mr.D.Selvanayagam, learned legal aid counsel for the respondent / complainant vehemently contented that as per Section 27 of the General Clauses Act,1897 and Section 114 of the Evidence Act, 1872, once notice is sent by registered post to the correct address of the drawer of the cheque, the service of notice is deemed to have been effected and thereby, the requirement under proviso (b) of Section 138 N.I.Act stands duly complied. However, the drawer is at liberty to rebut this presumption by letting in evidence. He further submitted that the summons were sent to the petitioner / accused by the Court to the same address stated in the legal notice and the registered post was also sent to the very same address and the petitioner / accused had appeared before the Trial Court and thereby, the ground of non- service of notice on him cannot be taken as a defence. It was the further submission of the learned counsel for the respondent / complainant that the petitioner / accused has also filed the revision with the very same address and that the address is also reflected in the cause title of the present revision and when that being so, the notice sent to proper address is deemed to be constructively served and as such, the petitioner / accused, who had evaded service, cannot take undue advantage stating that notice was not served on him. 16. 16. Learned counsel for the respondent / complainant further submitted that regarding the service of notice on the petitioner/accused, it was categorically pleaded in the complaint in para 4 that the petitioner / accused has refused to accept the notice and thereby, it had been returned with an endorsement “Intimation delivered” and “Unclaimed” and moreover, there was a categorical averment in the complaint in respect of evading to receive the notice and when that being so the judgments referred and cited supra by the petitioner / accused with regard to service of notice would not be applicable to the facts on hand. To strengthen his submissions, the learned legal aid counsel for the respondent / complainant relied upon the decision of the Honourable Supreme Court in N.Parameswaran Unni vs. G.Kannan and another, reported in (2017) 5 SCC 737 and referred to Paragraph Nos.11 to 16, which are extracted hereunder: “11. A bare reading of Section 138 of the NI Act indicates that the purport of Section 138 is to prevent and punish the dishonest drawers of cheques who evade and avoid their liability. As explained in clause (b) of the proviso, the payee or the holder of the cheque in due course is necessarily required to serve a written notice on the drawer of the cheque within fifteen days from the date of intimation received from the bank about dishonour. 12. It is explicitly made clear under clause (c) of Section 138 of the NI Act, that this gives an opportunity to a drawer of the cheque to make payment within fifteen days of receipt of such notice sent by the drawee. It is manifest that the object of providing clause (c) is to avoid unnecessary hardship. Even if the drawer has failed to make payment within fifteen days of receipt of such notice as provided under clause (c), the drawer shall be deemed to have committed an offence under the Act and thereafter the drawee would be competent to file complaint against the drawer by following the procedure prescribed under Section 142 of the Act. 13. It is clear from Section 27 of the General Clauses Act, 1897 and Section 114 of the Evidence Act, 1872, that once notice is sent by registered post by correctly addressing to the drawer of the cheque, the service of notice is deemed to have been effected. 13. It is clear from Section 27 of the General Clauses Act, 1897 and Section 114 of the Evidence Act, 1872, that once notice is sent by registered post by correctly addressing to the drawer of the cheque, the service of notice is deemed to have been effected. Then requirements under proviso (b) of Section 138 stand complied, if notice is sent in the prescribed manner. However, the drawer is at liberty to rebut this presumption. 14. It is well settled that interpretation of a statute should be based on the object which the intended legislation sought to achieve: “It is a recognised rule of interpretation of statutes that expressions used therein should ordinarily be understood in a sense in which they best harmonise with the object of the statute, and which effectuate the object of the Legislature. If an expression is susceptible of a narrow or technical meaning, as well as a popular meaning, the Court would be justified in assuming that the Legislature used the expression in the sense which would carry out its object and reject that which renders the exercise of its power invalid [New India Sugar Mills Ltd. v. CST, AIR 1963 SC 1207 ]”. 15. This Court in a catena of cases has held that when a notice is sent by registered post and is returned with postal endorsement “refused” or “not available in the house” or “house locked” or “shop closed” or “addressee not in station”, due service has to be presumed [Jagdish Singh v. Natthu Singh, (1992) 1 SCC 647 ; State of M.P. v. Hiralal, (1996) 7 SCC 523 and V.Raja Kumari v. P.Subbarama Naidu, (2004) 8 SCC 774 : 2005 SCC (Cri) 393]. Though in the process of interpretation right of an honest lender cannot be defeated as has happened in this case. From the perusal of relevant sections it is clear that generally there is no bar under the NI Act to send a reminder notice to the drawer of the cheque and usually such notice cannot be construed as an admission of non-service of the first notice by the appellant as has happened in this case. 16. Moreover the first notice sent by the appellant on 12-4-1991 was effective and notice was deemed to have been served on the first respondent. 16. Moreover the first notice sent by the appellant on 12-4-1991 was effective and notice was deemed to have been served on the first respondent. Further, it is clear that the second notice has no relevance at all in this case at hand. The second notice could be construed as a reminder of the respondent’s obligation to discharge his liability. As the complaint was filed within the stipulated time contemplated under clause (b) of Section 142 of the NI Act, therefore Section 138 read with Section 142 of the NI Act is attracted. In the view of the matter, we set aside the impugned judgment of the High Court.” 17. Further, the learned counsel for the respondent / complainant contended that in respect of the plea of the petitioner /accused with regard to the claim that the signature in the cheque is not that of him, the Appellate Court had in detail after going through the records and evidence held that there were ample and cogent evidence to hold that the cheque was issued by the petitioner / accused and that the petitioner / accused had not come forward to send the disputed cheque for comparison in order to prove that the signature found in the cheque was not his and that when P.W.3, the partner of the de facto complainant / Firm has categorically stated that the cheque was issued by the petitioner / accused himself and that P.W.2 / Thiru.Mahendran, Bank Manager, Canara Bank, in his evidence, had deposed that the petitioner / accused had got account in their Bank and the cheque / Ex.P3 was issued in favour of him by his Bank and the cheque was returned only for the reason that there were ?Insufficient funds? in the account of the petitioner / accused. The Appellate Court had also held that when the cheque was issued by the Bank in favour of petitioner / accused, the burden is on the accused to disprove that the cheque was not issued by him for which he has not taken any steps and moreover, he has not let in any evidence to deny the fact that the cheque was not issued by him and he has also not given any satisfactory explanation as to how the cheque had gone into the hands of the de facto complainant. Further, Ex.P2 / Bill was said to be issued for the purchase of green-gram by the petitioner / accused and the Ex.P2 / Bill was not at all denied by the petitioner / accused. Therefore, the Appellate Court has rightly given a finding on the evidence of P.W.3 that the petitioner / accused had issued the cheque / Ex.P3 only for the balance amount found in Ex.P2. Further, the Appellate Court held that the petitioner / accused has not proved any of the signature found in any of the documents prior to Ex.P3. Thereby the learned counsel for the respondent/complainant contended that the argument that his present signature was not like that of Ex.P3 could not be accepted. Further, the Appellate Court had given a finding that the petitioner / accused has also changed the language and type of his signatures in first questioning and also in 313 Cr.P.C. Questioning and thereby found that the conduct and the way in which the petitioner / accused had acted subsequent to the complaint led the Appellate Court to hold an adverse presumption against the petitioner / accused leading to an inference that the signature was that of the petitioner / accused. Yet another contention putforth by the learned counsel for the respondent /complainant is that the cheque had been returned for the single reason ?insufficiency of funds? and not for ?disparity in signature? and that when the Bank Manager had not been confronted with the specimen signature available in the Bank, the stray answer given by him at the witness box, without reference to any other records, cannot be taken as that it was not the signature of the petitioner / accused and prayed for dismissal of the revision. 18. I have heard the counsels for both sides and carefully perused the materials available on record. 19. With regard to the service of notice, the Appellate Court had held that the respondent / complainant has sent legal notice to the petitioner / accused through Ex.P7 by registered post as well as by the certificate of posting and the notice sent by registered post was returned with an endorsement 'not claimed' and 'intimation delivered'. Therefore, it was deemed to be served on the petitioner / accused. Therefore, it was deemed to be served on the petitioner / accused. It is relevant to state that as submitted by the learned counsel for the respondent / complainant, the Court summons have been sent to the very same address as in the returned cover and moreover, the very same address has been stated to be the address of the revision petitioner / accused in the cause title of this revision also. Hence, the argument of the learned counsel for the petitioner / accused that the legal notice was not duly served on the petitioner / accused is not accepted. 20. In respect of the next ground raised by the learned counsel for the petitioner / accused disputing the signature of the petitioner / accused, it is seen that though the Manager had stated that the signature of the petitioner / accused was different, the Appellate Court, after scanning the available records, had given a categorical finding that the petitioner / accused was having the habit of changing the language and type of his signature and that he has not proved any of the signature found in any of the documents prior to Ex.P3 and the appellate court by going through all the documents had given a definite finding that the petitioner / accused has also changed the language and type of his signature in the first questioning and also in 313 Cr.P.C., questioning and thereby, the Appellate Court held that the way in which the petitioner / accused had acted subsequent to the complaint led to hold an adverse presumption against him and refused to accept the argument of the petitioner / accused that the signature in the cheque is not his. Further, the Appellate Court took into consideration the evidence of the Branch Manager, with regard to the account being held by the petitioner / accused and issuing of cheque book to him and also when there being no denial having been made by the petitioner / accused, with regard to the manner in which, the disputed cheque went into the hands of the respondent / complainant held against the petitioner / accused. Further, the Appellate Court also found that the cheque was returned stating a single reason ?Insufficient Funds? and not for the reason ?disparity in signature? and that the notice was also returned as ?not claimed?and ?intimation delivered? Further, the Appellate Court also found that the cheque was returned stating a single reason ?Insufficient Funds? and not for the reason ?disparity in signature? and that the notice was also returned as ?not claimed?and ?intimation delivered? and not returned due to the insufficient address thereby holding on both grounds against the petitioner/accused. The reasoning given by the Courts below in giving a finding against the petitioner / accused is supported by cogent evidence and materials on record. In such circumstances, this Court finds no reason to interfere with the findings of both the Courts below. 21. In the result, the criminal revision fails and it is dismissed and the Judgment, dated 17.12.2007, made in C.A.No.43 of 2007, by the learned Additional Sessions Judge (Fast Track Court), Virudhunagar, confirming the conviction and modifying the sentence imposed vide Judgment, dated 22.05.2007, made in C.C.No.35 of 2005, by the learned Judicial Magistrate No.I, Virudhunagar, are confirmed. The learned Trial Judge is directed to take steps to secure the petitioner / accused to undergo the remaining period of sentence. The bail bond, if any, executed by the petitioner / accused shall stand cancelled. 22. The learned counsel for the petitioner / accused and the learned counsel for the respondent / complainant on record did not appear before the Court and therefore, this Court directed the Legal Aid Cell to appoint counsels from the panel and thereby, Mr.M.Ramu, learned counsel was appointed to appear for the petitioner / accused and Mr.D.Selvanayagam, learned counsel was appointed to appear for the respondent / complainant. This Court appreciates the sincere efforts and dedication put in by the learned counsels in thoroughly preparing the case and presenting the case effectively.