Madras High Court
C.Raja vs R.M.Raymondraj .. 1St on 28 April, 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28.04.2015 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU Crl.R.C.(MD).No.880 of 2013 C.Raja .. Petitioner/ Appellant/Accused Vs. 1.R.M.Raymondraj .. 1st respondent/ 1st respondent/complainant 2.The State of Tamil Nadu, rep. by its Public Prosecutor, Nagercoil, Kanyakumari District. .. 2nd Respondent/ 2nd Respondent PRAYER Criminal revision filed under Section 397 r/w 401 of Cr.P.C. against the judgment dated 23.09.2013, made in C.A.No.65 of 2005 on the file of the learned Sessions Judge, Kanyakumari District at Nagercoil, confirming the conviction and sentence, dated 31.01.2005, made in C.C.No.288 of 1999 on the file of the Principal District Munsif cum Judicial Magistrate, Eraniel, Kanyakumari District. !For Petitioner : Mr.R.Murugan ^For 1st respondent : Mr.S.Palanivelayutham For 2nd respondent : Mr.P.Kannithevan, Government Advocate :ORDER
The petitioner is the accused in C.C.No.288 of 1999 on the file of the learned Principal District Munsif cum Judicial Magistrate, Eraniel, Kanyakumari District. The first respondent is the complainant in the case. The first respondent filed the said case alleging that the petitioner has committed the offence punishable under Section 138 of the Negotiable Instruments Act. The trial Court, by judgment dated 31.01.2005, convicted the petitioner under Section 138 of the Negotiable Instruments Act and sentenced him to undergo rigorous imprisonment for two years and to pay a fine of Rs.5,000/-, in default to undergo simple imprisonment for one month. Challenging the same, the petitioner has filed appeal in C.A.No.65 of 2005 before the learned Sessions Judge, Kanyakumari District at Nagercoil. By judgment dated 23.09.2013, the lower appellate Court has dismissed the appeal, thereby confirming the conviction and sentence imposed by the trial Court. As against the same, the petitioner is before this Court with this revision.
2.I have heard the learned counsel appearing on either side. I have also perused the records carefully.
3.The case of the complainant is that the accused had borrowed a sum of Rs.1,00,000/- from him on 04.09.1998. Again he borrowed yet another sum of Rs.86,000/- on 30.01.1998. In discharge of the said loan, it is alleged that the accused gave the cheque in question for Rs.1,86,000/- on 01.02.1999 drawn on Syndicate Bank, Mulagumoodu Branch, Kanyakumari District. Subsequently, the complainant presented the cheque for collection in his account on 01.02.1999 and the same was dishonoured for want of sufficient funds in the account of the accused. Due intimation from the bank was received by the complainant on 01.02.1999. Thereafter, the complainant issued a legal notice under Section 138 of the Negotiable Instruments Act to the accused on 05.02.1999, but the said notice was not delivered to the petitioner/accused by the postal authority as the postal address given was wrong. The notice was, therefore, returned by the postal authority without delivering the same to the petitioner. It was returned back to the complainant on 18.02.1999. Thereafter, again the complainant issued a second notice on 22.02.1999 under Section 138 of the Negotiable Instruments Act, calling upon the accused to pay the amount due under the cheque. That notice was properly addressed to the accused and therefore, he received the same on 24.02.1999. The accused sent a reply to the said notice on 05.03.1999. Thereafter, the private complaint was laid by the complainant on 19.03.1999.
4.In this revision, it is contended by the learned counsel for the petitioner that the notice dated 05.02.1999, which was not served on the petitioner, was sent to a wrong address. The petitioner was not aware of the said notice. He would further submit that the second notice, dated 22.02.1999, was sent to the correct address of the petitioner and therefore, he received the same. The learned counsel would further submit that so far as the first notice, dated 05.02.1999, is concerned, since it was not addressed to the petitioner correctly and since it was not served on the petitioner, the same has not satisfied the requirement of Section 138 of the Negotiable Instruments Act. So far as second notice is concerned, it was issued on 22.02.1999, that is beyond the period of limitation of 15 days from the date of intimation from the bank. Thus, the entire prosecution, based on the time barred notice, dated 22.02.1999, is vitiated, the learned counsel submitted.
5.The learned counsel appearing for the first respondent/complainant would vehemently oppose this petition. The first notice, dated 05.02.1999, was sent to the proper address, but the Post Office within whose jurisdiction the petitioner was residing had simply returned the same as the address had been wrongly mentioned. It is because of the said reason the second notice, dated 22.02.1999, was issued. Though the said notice, dated 22.02.1999, was issued for beyond the period of 15 days from the date of intimation from the bank, the same is immaterial, because the first notice was returned erroneously by the postal authority.
6.I have considered the above submissions.
7.Admittedly, the first notice, dated 05.02.1999, was not sent to the proper address of the accused/petitioner. It was also not served on the petitioner. It is not in evidence that knowing fully well about the contents of the notice, the petitioner had avoided the service of notice. Therefore, from the evidence available, it has to be concluded that the said notice, dated 05.02.1999, is not valid and that the petitioner was not aware of the said notice.
8.So far as the second notice, dated 22.02.1999, admittedly, it was issued for beyond the period of limitation, which does not satisfy the requirement of Section 138 of the Negotiable Instruments Act. Therefore, the entire prosecution, in my considered view, is vitiated. The Courts below have not appreciated this legal issue in its proper perspective. In such view of the matter, I am inclined to allow this revision.
9.In the result, this revision is allowed and the conviction and sentence imposed by the trial Court and confirmed by the lower appellate Court are set aside and the petitioner is acquitted from the charges. The bail bond, if any, shall stand terminated. The fine amount paid, if any, shall be refunded to the petitioner.
28.04.2015
Index : Yes / No
Internet : Yes / No
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To
1.The Sessions Judge,
Kanyakumari District at Nagercoil.
2.The Principal District Munsif cum
Judicial Magistrate, Eraniel,
Kanyakumari District.
3.The Public Prosecutor,
Nagercoil,
Kanyakumari District.
4.The Addl. Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
S.NAGAMUTHU, J.
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Crl.R.C(MD)No.880 of 2013
28.04.2015