Madras High Court
A.B. Steels vs Coromandel Steel Products on 9 October, 1991
Author: Pratap Singh
Bench: Pratap Singh
JUDGMENT Pratap Singh, J.
1. The accused in C.C. No. 1830 of 1991, on the file of the II Metropolitan Magistrate, Egmore, Madras, have filed this petition under section 482, Criminal Procedure Code, praying to call for the records in the aforesaid case and quash the same.
2. The respondent has filed a private complaint against the petitioner under section 138, Negotiable Instruments Act. The allegations in it are briefly as follows :
The first accused is a firm represented by its partner who is in charge of it, viz., the second accused. In respect of the goods sold and delivered, the second accused issued a cheque on December 11, 1990, for Rs. 70,000. The second accused is in charge of the business. The complainant presented the cheque on December 17, 1990, for encashment. It was returned with an endorsement "refer to drawer" due to lack of sufficient funds and notice of dishonour was received by the complainant on December 18, 1990. He issued a notice dated December 27, 1990, through a lawyer; calling upon the accused to pay the amount due under the dishonoured cheque. In order to escape from the consequences of section 138, Negotiable Instruments Act, and to circumvent the same, the accused managed to return the notice with an endorsement "not found". The registered letter was received back by the complainant on January 19, 1991. Immediately, he went to the business place of the accused and asked him to take notice which he refused. The complainant had sent the notice by registered post with proper address by paying proper charges and so it must be deemed that service of notice was effected on the accused. The cause of action arose on February 3, 1991, viz., 15 days after the postal endorsement dated January 19, 1991. Hence the complaint.
3. Mr. T. Munirathina Naidu, learned counsel appearing for the petitioners, would contend that there was no service of notice on the accused and hence the question of payment of amount within 15 days of service of notice does not arise in this case and an offence under section 138, Negotiable Instruments Act, is not complete and, on that ground, the complaint is liable to be quashed.
4. The complaint states that the second accused issued the cheque on December 11, 1990, that it was presented on December 17, 1990, and it was returned dishonoured with an endorsement "refer to drawer" and notice of dishonour war received on December 18, 1990. It is further alleged that the complainant sent the notice through his lawyer on December 27, 1990, calling upon the accused to pay the amount due under the dishonoured cheque. Then, it is alleged as follows :
"The complainant states that, in order to circumvent and escape from the attraction of the mischief under section 138 of the Negotiable Instruments Act, he managed to return the above-said notice with an endorsement 'not found'. The registered letter was received back by the complainant on January 19, 1991. Immediately after the return of the said notice, the complainant went to the business place of the accused wherein he is still doing business and asked him to take the notice which he refused. The complainant has sent the notice by registered post with proper address and by paying postal charges, so it is deemed that the service of the notice is effected on the accused."
5. The above allegations would make it clear that the accused was quite aware of the sending of the notice and, with a deliberate intention of avoiding the consequences of section 138 of the Negotiable Instruments Act, had managed to return the aforesaid notice, though it was addressed to the proper address. It is also alleged that the complainant went to the business place of the accused and asked him to take the notice which he refused. The above, if proved, would clearly amount to constructive service of notice. It is idle to contend that, even in such circumstances and in the face of such positive allegations, there was no service of notice and hence an offence under section 138 of the Negotiable instruments Act is not made out. The aforesaid allegations would go to show that the accused was quite aware of the sending of the notice by the complainant and deliberately avoided receipt of the same. It cannot but amount to constructive service of notice and the calculation of further period with reference to January 19, 1991, is correct.
6. Learned counsel would further contend that the notice of dishonour of the cheque was received by the complainant on December 18, 1990, and the allegation was that the complainant went to the business place of the accused and asked him to take notice only on January 19, 1991, and that January 19, 1991, is beyond 15 days from December 18, 1990, and hence there is no statutory notice. The allegation that the complainant went to the business place of the accused and asked him to take the notice is only with reference to the notice which had earlier been sent by registered post on December 27, 1990. It is not a new notice. That act is to be tacked on to December 27, 1990, when the registered notice was sent which is within 15 days of December 18, 1990. Hence, I am unable to accept this contention either.
7. In view of the above, the petition does not deserve admission and is dismissed.