Madras High Court
R.Pandimurugan vs R.Palanisamy on 11 December, 2014
Author: R.S.Ramanathan
Bench: R.S. Ramanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.12.2014 CORAM: THE HONOURABLE MR. JUSTICE R.S. RAMANATHAN CRIMINAL APPEAL No.1258 of 2004 R.Pandimurugan ... Appellant vs. R.Palanisamy ... Respondent Criminal Appeal filed under Section 378 of the Code of Criminal Procedure to call for the records in C.C.No.466 of 2000 dated 17.09.2004 on the file of the learned Judicial Magistrate, Mettupalayam and set aside the same. For Appellant : Mr.S.Lakshmanasamy For Respondent : Mr.M.R. Thangavel J U D G M E N T
The complainant in C.C.No.466 of 2000 on the file of the Judicial Magistrate, Mettupalayam is the appellant. He filed a complaint under Section 138 of the Negotiable Instruments Act against the respondent stating that the respondent borrowed a sum of Rs.3,00,000/- on 16.08.2000 and executed a Promissory Note in his name and also assured to pay interest at the rate of 36% per annum. When the respondent failed to settle the amount within a month and when the appellant demanded payment from the respondent, the respondent issued a cheque bearing No.659808 dated 27.09.2000 for a sum of Rs.3,10,000/- drawn on Karnataka Bank Limited, Gandhiji Road, Erode, which includes interest and the cheque was presented for collection on 13.10.2000 and the same was returned with the endorsement 'funds insufficient' on 14.10.2000. Therefore, a legal notice dated 28.10.2000 was issued to the respondent calling upon him to pay such amount and the said notice was returned to the complainant/appellant with an endorsement 'refused'. Therefore, the complaint was filed.
2. The appellant/complainant examined himself and one Rajagopal and marked five Exhibits and the respondent/accused examined himself and one Thangavel and marked eleven Exhibits. The Trial Court acquitted the respondent holding that the appellant failed to prove that the notice was served on the respondent or notice was issued to the respondent to the correct address calling upon him to repay the amount and the notice was issued to the address viz. Door No.34, Balusamy Nagar, Erotex Colony, Solar Pudur, Erode, whereas, the respondent was residing in No.52, Balusamy Nagar, Erotex Colony, Erode as proved by Ex.D1 series and therefore, in the absence of any proof of notice sent to the respondent, no case was made out against the respondent and the endorsement 'refused' in Ex.P5 cannot be taken as a proof or service of notice to the respondent.
3. It is submitted by the learned counsel for the appellant that the respondent is residing in Door No.34, Balusamy Nagar, Erotex Colony, Solar Pudur, Erode and the notice sent to that address was returned with the endorsement 'refused' and there is no enmity between the respondent and the postman and therefore, the endorsement made on the notice cover by the postman must be taken as a proof of refusal by the respondent to receive the notice and that respondent's refusal to receive the notice amounts to service of notice on him and therefore the offence was made out and this aspect was not properly appreciated by the Trial Court.
4. He further submitted that even assuming that the respondent has no knowledge about the notice in Ex.P5, in the complaint, the respondent's address was described as Door No.34, Balusamy Nagar, Erotex Colony, Solar Pudur, Erode and summons was issued to the said address and in response to the summons, the respondent appeared before the court and this aspect was not properly appreciated by the Court below. He also submitted that even in the summons sent by this court, the respondent was stated to be residing at Door No.34, Balusamy Nagar, Erotex Colony, Solar Pudur, Erode and he received the acknowledgment when the notice was sent to him and thereafter, he entered appearance and the acknowledgment signed by the respondent would also prove that he is residing at Door No.34, Balusamy Nagar, Erotex Colony, Solar Pudur, Erode and therefore, the Trial Court erred in holding that no notice was served on the respondent as contemplated under Section 138 of the Act and the Trial Court ought to have held that notice was served on the respondent and he refused to receive the notice and therefore, it was returned with the endorsement 'refused' and that amounts to service and ought to have convicted the respondent.
5. On the other hand, Mr.M.R.Thangavel, learned counsel appearing for the respondent submitted that the respondent proved through Exs.D1 to D11 and also through D.Ws.1 and 2 that he was not residing at Door No.34, Balusamy Nagar, Erotex Colony, Solar Pudur, Erode and he was residing at No.52, Balusamy Nagar, Erotex Colony, Erode and only D.W.2 was residing at Door No.34, Balusamy Nagar, Erotex Colony, Solar Pudur, Erode. He submitted that Ex.D1 series are the post cards sent to the respondent by various people from 04.09.2000 to 03.11.2000 much before the cause of action for this complaint and Ex.D1 series would prove that the respondent was not residing in Door No.34, Balusamy Nagar, Erotex Colony, Solar Pudur, Erode. He further submitted that the respondent also examined D.W.2 to prove that it was D.W.2, who was residing at Door No.34, Balusamy Nagar, Erotex Colony, Solar Pudur, Erode, by producing Exs.D7 to D11. He also submitted that the respondent not only proved that he was not residing in Door No.34, Balusamy Nagar, Erotex Colony, Solar Pudur, Erode and was residing in No.52, Balusamy Nagar, Erotex Colony, Erode, but also proved that D.W.2 was residing in No.34 Balusamy Nagar address during the relevant period and considering all these aspects, the Trial Court rightly acquitted the respondent. In support of his stand, he relied on two judgments of the Hon'ble Supreme Court, one reported in 2006 (6) SCC 456 (D.Vinod Shivappa vs. Nanda Belliappa) and the other in 2008 (13) SCC 689 (Subodh S. Salaskar vs. Jayprakash M. Shah & another).
6. Having regard to the submissions made by the learned counsel on either side, it has to be seen whether proper notice was issued to the respondent by the appellant.
7. In the judgment reported in 2008 (13) SCC 689 (Subodh S. Salaskar vs. Jayprakash M. Shah & another), in paragraph 14, the Honourable Supreme Court enumerated the essential ingredients of an offence under Section 138 of the Negotiable Instruments Act and held that unless the conditions stated therein were proved by the complainant, the Court should not take cognizance of the complaint. In other words, the offence is said to have been committed by the accused under Section 138 only after notice was served on the accused by the appellant/complainant and the accused failed to repay the amount within a period of 15 days from the date of receipt of the said notice. Therefore, in the absence of any notice served on the accused, no offence is said to have been committed by the respondent.
8. It is the specific case of the appellant that Ex.P4 notice was refused by the respondent and Ex.P5 cover would prove the same as there was an endorsement by the postman to the effect 'refused'. He therefore contended that notice was served and the accused failed to pay the amount within 15 days and therefore, he has committed the offence.
9. No doubt Ex.P5 had the endorsement 'refused' and that would not be sufficient to arrive at a conclusion that the accused/respondent was served with notice as stated supra. It is proved by the respondent through Ex.D1 series that he was residing at No.52, Balusamy Nagar, Erotex Colony, Erode. He also filed Voters list in respect of No.34, Balusamy Nagar, Erotex Colony, Erode and marked the same as Ex.D7; Copy Voter ID Card and Ration Card issued in favour of D.W.2 are marked as Exs.D8 and D9, respectively. These documents would prove that D.W.2 was residing at No.34, Balusamy Nagar, Erotex Colony, Erode. Ex.D10 is the Certificate issued by the Village Administrative Officer and Ex.D11 are the LIC Premium Receipts issued in favour of D.W.2 and these two documents also would prove that D.W.2 is residing in the said address and not the respondent. Therefore, the respondent through Ex.D1 series proved that he was residing in No.52, Balusamy Nagar, Erotex Colony, Erode and also proved through Exs.D7 to D11 that D.W.2 was residing in No.34, Balusamy Nagar, Erotex Colony, Erode. Further, in the absence of examination of the postman who made the endorsement, it cannot be presumed that the notice addressed to No.34, Balusamy Nagar, Erotex Colony, Erode was refused by the respondent.
10. In the judgment reported in 2006 (6) SCC 456 (D.Vinod Shivappa vs. Nanda Belliappa), the Honourable Supreme Court, referring to Section 27 of the General Clauses Act, held that the principle incorporated in Section 27 of the Act would apply in a case where the sender despatched the notice by post with the correct address written on it, but that would be without prejudice to the right of the drawer of the cheque to show that he had no knowledge that the notice was brought to his address. Therefore, initial burden was on the complainant to prove that the notice was sent to the correct address of the respondent and if that burden is discharged, then the accused is bound to prove that he has not received the notice or he has no knowledge that the notice was sent to his address.
11. Having regard to Exs.D3 and D5, the appellant failed to prove that the notice was sent to the correct address and the respondent proved through Exs.D1 to D11 that he was residing at No.52, Balusamy Nagar, Erotex Colony, Erode and D.W.2 was residing in the same address and therefore, the Trial Court rightly held that notice was not sent to the accused and in the absence of any notice to the accused, no offence is said to have been committed by the accused. Further, it is also submitted by the learned counsel for the respondent that the respondent appeared before the Trial Court on coming to know of the issuance of NBW and that was also found to be correct.
12. According to me, the Trial Court has rightly appreciated the principle laid down by the Honourable Supreme Court as well as the law laid down therein in respect of Section 138 of the Act. Therefore, I do not find any infirmity with the order of the learned Trial Judge and accordingly, this Criminal Appeal stands dismissed.
Index : Yes/No Internet : Yes/No 11.12.2014 abe To : The Judicial Magistrate, Mettupalayam. R.S.RAMANATHAN,J. Abe Judgment in Criminal Appeal No.1258 of 2004 Dated: 11.12.2014