Andhra HC (Pre-Telangana)
M. Ramesh vs Vankadara Sunil Kumar on 11 July, 2005
Equivalent citations: 2005(2)ALD(CRI)442, IV(2006)BC84
ORDER C.Y. Somayajulu, J.
1. Alleging that cheque dated 11.1.2003 for Rs. 2 lakhs drawn on Tamil Nadu Mercantile Bank Limited, issued by the petitioner on behalf of Ceema Cotton Traders, in his favour, was returned on the ground of "insufficient funds" and that in spite of his issuing statutory notice on 5.8.2003, informing the petitioner about the dishonour of the cheque with a demand for payment, petitioner failed to pay the amount, first respondent filed a complaint under Section 138 of the Negotiable Instruments Act (the Act) against the petitioner which was registered as C.C. No. 460 of 2003. This petition is filed to quash the said complaint.
2. The main contention of the learned Counsel for the petitioner is that the father of the petitioner, but not the petitioner, is the proprietor of Ceema Cotton Traders, on whose behalf the cheque was drawn and so petitioner cannot be made liable under Section 138 of the Act.
3. The specific case of first respondent, in the complaint, is that petitioner drew the bounced cheque in his favour. That cheque, as per the averments in the complaint, was returned on the ground of "insufficient funds", but not on the ground that the signature of the drawer does not tally with the specimen signatures of the account holder. So, prima facie, petitioner has to be taken to be owner of the Ceema Cotton Traders.
4. Question whether father of the petitioner or the petitioner is the proprietor of 'Ceema Cotton Traders' need not be considered for deciding the petition, because while considering a petition under Section 482 Cr. P.C., this Court has to consider the averments in the complaint only, but not the defence of the accused. Here, I feel it necessary to mention that in the cause title to this petition, petitioner is described as "M. Ramesh, s/o Radha Krishnan, aged about 45 years, Proprietor of Ceema Cotton Traders, c/o Sri Seethalakshmi Ginning Factory, Opp. Suklavarapatti, Petiyakulam Road, Theni -626531, Tamil Nadu State". So, prima facie, the contention of the petitioner that he is not the proprietor of 'Ceema Cotton Traders' cannot be accepted. As stated earlier, the question of ownership and authorizing to issue cheque can only be decided after trial.
5. The next contention of the learned Counsel for petitioner that inasmuch as petitioner did not receive the statutory notice, the complaint is not maintainable, cannot be accepted, because the allegation in the complaint shows that the statutory notice was returned unclaimed. In view of the ratio in K. Bhaskaran v. Sankaran Vaidhyan Balan III read with Section 27 of the General Clauses Act, question whether the address mentioned on the returned envelope is that of the petitioner or not is a matter of evidence.
6. The averments in the complaint show that on the same day on which first respondent sent the statutory notice by registered post, he sent a notice under certificate of posting also to the petitioner and produced that certificate as document No. 5 along with the complaint. Notice sent under certificate of posting also would be valid statutory notice, since Section 138 of the Act does not mandate that the notice under that section has to be sent only by registered post. Therefore, in view of the presumption that a letter addressed to the correct address of the addressee would be deemed to have been received by the addressee, the contention that there is no valid statutory notice, prima facie cannot be accepted, since the question whether the address mentioned in the certificate of posting is the correct address of the petitioner or not can be decided only after trial.
7. In the above circumstances, I find no grounds to quash the complaint and hence the petition is dismissed.