S. Rajan Vs E.

Satyanarayanan
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2012 CJ(Mad) 3939

HIGH COURT OF MADRAS

S. RAJAN V/S E. Satyanarayanan

Decided On: 17 December 2012

Hon'ble Judges: B.RAJENDRAN J., J

Appeal No/Type: Crl.R.C.No. 587 of 2008

Advocates: N.Baaskaran , M.Kamalakannan

Acts Referred:

Eq. Citation: 2013 (1) MADLW(CRI) 598, 2013 (1) LW(Cri) 598

JUDGEMENT

1. ORIGINALLY , the respondent/accused has been convicted by the learned XV

Metropolitan Magistrate, George Town, Chennai, in C.C.No.1896 of 2002, by order dated
14/10/2006, for the offence under Section 138 of Negotiable Instruments Act and
sentenced to undergo six months simple imprisonment and to pay a compensation of
Rs.1,80,000/- to the complainant within two months, in default to undergo two months
simple imprisonment. On Appeal, the learned VI Additional Sessions Judge, Chennai, has
set aside the conviction and sentence by judgment, dated 5.3.2008, in C.A.No.294 of 2006
and acquitted the accused from the offence under Section 138 of the Negotiable
Instruments Act. Aggrieved against the same, the complainant is before this Court with this
revision.

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2. THE facts of the case in a nut-shell are as follows:- The Petitioner/complainant preferred
a complainant against the respondent/accused alleging that the accused borrowed a sum
of Rs.1,50,000/- on 4.2.2001 and executed a pro-note and also to repay that amount, he
has issued a cheque dated 5.3.2002 for Rs.1,50,000/- and when the cheque was
presented before the Punjab National Bank, the same was returned with an endorsement,
'Insufficient Fund ', therefore the complainant issued a notice to the accused on 21.3.2002,
which was returned to the complainant, inspite of the notice, the accused did not pay any
amount, therefore, the complainant preferred a compliant under Section 200 Cr.P.C. for the
offence under Section 138 of the Negotiable Instruments Act.

Mr.N.Baaskaran, learned counsel for the petitioner/complainant submits that the petitioner
had sent a statutory notice to the respondent/accused on 21.3.2002 and it was intimated
by the postal authorities to the accused on 22.3.2002, but inspite of the same, the accused
did not choose to take the notice from the Postal Department, therefore, it was returned to
the petitioner/complainant. But, the first Appellate Court on a wrong assumption that the
petitioner/complainant has to prove the actual delivery of the notice, has set aside the order
of conviction and sentence passed by the lower Court and allowed the appeal, dismissing
the complaint. The learned counsel would further contend that earlier, on appeal, the matter
was remitted back to the lower Court, after remand, the accused has examined an Officer
from the Postal Department as D.W.3-Ramamurthy, who has clearly deposed regarding
the intimation but, in spite of the same, the first Appellate Court has wrongly come to the
conclusion that the statutory notice has not been properly served, therefore, only on the sole
ground that the service of statutory notice has not been clearly proved by the complainant,
the complaint was dismissed. Aggrieved against the same, the complainant has come
forward with the present revision.

3. TO substantiate his contention, the learned counsel for the petitioner/complainant would
rely on the latest decision of the Supreme Court reported in (2007) 6 Supreme Court
Cases 555, C.C.Alavi Haji vs. Palapetty Muhammed and Another and he would contend
that when the notice was sent to the correct address of the accused as per Section 27 of
General Clauses Act, the presumption is that the notice has been duly served on the
accused, therefore, in this case, when the petitioner/complainant has taken all possible
steps to serve notice on the accused and the same has been proved, the conclution of the
first Appellate Court that the service of statutory notice has not been clearly proved by the
complainant and dismissing the complaint is not correct and therefore, he challenges the
order of dismissal.

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4. MR .M.Kamalakannan, learned counsel for the respondent/accused would mainly

contend that the petitioner/complainant has not actually proved in accordance with law that
the notice has been properly served on the accused. He would rely upon the judgment of
this Court reported in 2004(3) CTC 573, S.S.Ummul Habiba vs. B.Rajendran, for the
proposition that the complainant should also aver in complaint that accused is evading
service to establish service of notice. He would further rely on the decision of Madurai
Bench of this Court reported in (2008) 1 MLJ (Crl.) 252, Michel Antony vs.
P.S.Chandrasekara Raja, for the proposition that in case of return of cover as 'No such
addressee ', it is not the proper service, Lastly, he would rely on the proper service. Lastly,
he would rely on the decision of the Supreme court reported in (2000) 1 Supreme Court
Cases 397, M.A.Sridhar vs.Metalloy N.Steel Corporation, for the proposition that notice
should not be deemed to have been served as a matter of course and when the notice has
not been served, the accused is entitled to benefit of doubt. Relying on the decisions cited
supra, the learned counsel would submit that since, in this case, the notice has not been
proved to be served on the accused, the first Appellate Court has rightly dismissed the
complaint and hence, the order of the first Appellate Court is correct.

Heard both sides. By consent, the main Criminal Revision is taken up for final disposal.

5. THIS case has a long chequered history. Originally, the complaint was allowed by the
lower Court and the accused was convicted for the offence under Section 138 of
Negotiable Instruments Act and sentenced to undergo six months simple imprisonment and
to pay a compensation of Rs.1,80,000/- to the complainant within two months, in default
imprisonment. Aggrieved against the same, the accused preferred an appeal. In the
appeal, the main question was, whether the notice was, properly served on the accused or
not. To ascertain in said position, the matter was remitted back to the lower Court and after
remand, the defence examined D.W.3, an Officer from the Postal Department, for the
purpose of proving the service of summons on the accused. In the chief-examination,
D.W.3 has categorically stated that the intimation was given to the accused. But, the lower
Court convicted the accused based on the evidence available, against which, the accused
preferred an appeal. In the first Applellate Court, his main argument was cross-exmined,
there was not a clear picture, whether the intimation was properly given or not and the date
on which the notice was returned to the complainant and there was a discrepancy in the
evidence of D.W.3 and citing such discrepancy in the evidence of D.W.3 the first Appellate
Court has stated in its judgment that the exact date on which the notice has been returned
to the complainant is not known and D.W.3 was not sure, whether the notice was kept in the
Postal Department atleast for five days as per the then pending Rules, therefore, taking
into consideration the discrepancy regarding, after intimation was given, whether the notice
was kept pending at least for five days in the Postal Department and when this discrepancy
has not been properly stated by the Officer from the Postal Department, the first Appellate

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Court disbelieved the theory that the notice was properly intimated to the accused and held
the notice was not served and acquitted the accused from the offence under Section 138 of
Negotiable Instruments Act. Aggrieved against the same, the present revision has been
filed by the complainant.

6. IN this connection, learned counsel for the petitioner/complainant also clearly pointed out
that D.W.3, the very same Officer from the Postal Department, after remand, has very
categorically stated that Ex.p.5-Returned Cover has been returned with an endorsement
'NP/ID/223 '. D.W.3 in his chief-examination has categorically stated that after intimation,
they will maintain a register or retain the notice in the Postal Department for a period of
seven days and even after seven days, if the notice is not claimed, it will be returned to the
concerned person, who has sent it and they will also make an endorsement in the notice as
'unclaimed ', but he was not able to say on which date, it was returned back to the
complainant.

In the above connection, the learned counsel for the respondent/accused relying upon the
evidence of the complainant, who ws examined as P.W.1, mainly argued that P.W.1 in his
deposition as well as in the complaint has only stated that he has given a notice on
21.3.2002 and thereafter. It has been received by him, but, the date on which, the
complainant has received back the notice has not has been clearly mentioned by him and
the wordings in his deposition, 21.3.02, "TAMIL " only denotes that the notice dated
21.3.2001, after intimation to the accused has been returned back to the complainant on
some other date.

7. IN the above connection, when we read the complaint, it is seen that the complainant has
clearly stated that the notice was sent on 21.3.202 calling upon the accused to pay the
amount and the cover addressed to the accused has been returned with an postal
endorsement, 'the intimation delivered on 22.3.2002 '.

8. IN this connection, it is also pertinent to point out that the accused under Section
313(1)(b)Cr.C.P., questioning has not raised this point that the notice has not been
properly served on the accused or he has not even been duly intimated by the postal
authorities regarding the notice and it is not the case of the accused also that the address
given in the notice is a wrong address, in fact, the summons have been served only in the
said address. It is not the case of the accused that even after the service of notice though

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Court, he has availed the opportunity to pay the amount within 15 days.

With the above back ground, when we analyse this case with the decision of the Supreme
Court reported in (2007) 6 Supreme Court Cases 555, C.C.Alavi Haji vs. Palapetty
Muhammed and Another, regarding presumption as to service of notice, in such case,
whether there is necessity of making averments in the complaint that the service of notice
was evaded by the accused or that the accused had a role to play in the return of the notice
unserved, the Supreme Court has held that there is no need to make such averments in the
complaint for raising presumption as to service in the said situation as in view of Section
27 of the General Clauses Act and Section 114 of Evidence Act, once the notice is sent by
registered post by correctly addressing the drawer of the cheque, the service of notice is
deemed to have been effected.

9. AT this junction, it is worthwhile to extract the relevant portions from the decision cited
supra, i.e. (2007) 6 Supreme Court Cases 555, C.C.Alavai Haji, vs. Palapetty Muhammed
and Another, which reads as under:-

"10. It is, thus, trite to say that where the payee dispatches the notice by registered post
with correct address of the drawer of the cheque, the principle incorporated in Section 27
of the G.C. Act would be attracted; the requirement of Clause (b) of proviso to Section 138
of the Act stands complied with and cause of action to file a complaint arises on the expiry
of the period prescribed in Clause (c) of the said proviso for payment by the drawer of the
cheque. Nevertheless, it would be without prejudice to the right of the drawer to show that
he had no knowledge that the notice was brought to his address. "

10. HOWEVER , the referring Bench was of the view that this Court in Vinod Shivappas
case (2006) 6 SC 456), did not take note of Section 114 of the Evidence Act in its proper
perspective. It felt that the presumption under Section 114 of the Evidence Act being a
rebuttable presumption, the complaint should contain necessary averments to raise the
presumption of service of notice; that it was not sufficient for a complainant to state that a
notice was sent by registered post and that the notice was returned with the endorsement
out of station; and that there should be a further averments that the addressee drawer had
deliberately avoided receiving the notice or that the addressee had knowledge of the
notice, for raising a presumption under Section 114 of the Evidence Act.

12. Therefore, the moot question requiring consideration is in regard to the implication of
Section 114 of the Indian Evidence Act, 1872 insofar as the service of notice under the
said proviso is concerned. Section 114 of the Indian Evidence Act, 1872 reads as follows:-

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"114. Court may presume existence of certain facts- The Court may presume the existence
of any fact which it thinks likely to have happened, regard being had to the common course
of natural events, human conduct and public and private business, in their relation to the
facts of the particular case. " Illustrations The Court may presume- (f) that the common
course of business has been followed in particular cases; 13. According to Section 114 of
the Act, read with Illustration (f) there under, when it appears to the Court that the common
course of business renders it probable that a thing would happen, the Court may draw
presumption that the thing would have happened, unless there are circumstances in a
particular case to show that the common course of business was not followed. Thus,
Section 114 enables the Court to presume the existence of any fact which it thinks likely to
have happened, regard being had to the common course of natural events, human conduct
and public and private business in their relation to the facts of the particular case.
Consequently, the court can presume that the common course of business has been
followed in particular cases. When applied to communications sent by post, Section 114
enables the Court to presume that in the common course of natural events, the
communication would have been delivered at the address of the addressee. But the
presumption that is raised under Section 27 of the G.C. Act is a far stronger presumption.
Further, while Section 114 of Evidence Act refers to a general presumption, Section 27
refers to a specific presumption. For the sake or ready reference, section 27 GC Act is
extracted below: "27. Meaning of service by post:- Where any Central Act or Regulation
made after the commencement of this Act authorizes or requires any documents to be
served by post, whether the expression serve or either of the expressions given or send or
any other expression is used, then unless a different intention appears, the service shall be
deemed to be effected by properly addressing, pre-paying and posting by registered post,
a letter containing the document, and, unless the contrary is proved, to have been effected
at the time at which the letter would be delivered in the ordinary course of post. "

Section 27 gives rise to a presumption that service of notice has been effected when it is
sent to the correct addresss by registered post. In view of the said presumption, when
stating that a notice has been sent by registered post to the address of the drawer, it is
unnecessary to further aver in the complaint that inspite of the return of the notice un served,
it is deemed to have been served or that the addressee is deemed to have knowledge of
the notice. Unless and until the contrart is proved by the addressee, service of notice is
deemed to have been effected at the time at which the letter would have been delivered in
the ordinary course of business. This Court has already held that when a notice is sent by
registered post and is returned with a 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. (vide Hagdish Singh Vs.Nattu Singh, (AIR 1992 SC 1604); State of M.P.Vs
Hiralal & Ors.[(1996)] 7 SCC 523] and V.Raja Kumari Vs.P.Subbarama Naidu & Anr.,
[(2004) 8 SCC 774]. It is, therefore, manifest that in view of the presumption available
under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138
of the Act that service of notice was evaded by the accused or that the accused had a role
to play in the return of the notice un served.

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11. AS noticed above, the entire purpose of requiring a notice is to give an opportunity to
the drawer to pay the cheque amount within 15 days of service and thereby free himself
from the penal consequences of Section

138. In Vinod Shivappa this Court observed(SCCp.462,para 13) "One can also conceive
of cases where a well intentioned drawer may have inadvertently missed to make
necessary arrangements for reasons beyond his control, even though he genuinely
intended to honour the cheque drawn by him. The law treats such lapses induced by
inadvertence or negligence to be pardonable, provided the drawer after notice makes
amends and pays the amount within the prescribed period. It is for this reason that Clause
(c) of proviso is meant to protect honest drawers whose cheque fails to make the payment
within 15 days of the receipt of the said notice. To repeat, the proviso to Section 138
provides that the section shall not apply unless the drawer of the cheque fails to make the
payment within 15 days of the receipt of the said notice. To repeat the proviso is meant to
protect honest drawers whise cheques may have been dishonoured for the fault of others,
or who may have genuinely wanted to fulfill their promise but on account of inadvertence or
negligence failed to make necessary arrangements for the payment of the cheque. The
proviso is not meant to protect unscrpulous drawers who never intended to honour the
cheques issued by them, it being a part of their modus operandi to cheat unsuspecting
persons. "

12. IT is also to be borne in mind that the requirement of giving of notice is a clear
departure from the rule of Criminal Law, where there is no stipulation of giving of a notice
before filing a complaint. Any drawer who claims that he did not receive the notice sent by
post, can, within 15 days of receipt of summons from the court in respect of the complaint
under Section 138 of the Act, make payment of the cheque amount and submit to the Court
that he had made payment within 15 days of receipt of summons (by receiving a copy of
complaint with the summons) and, therefore, the complaint is rejected. A person who does
not pay within 15 days of receipt of the summons from the court along with the copy of the
complaint under section 138 of the Act, cannot obviously contend that there was no proper
service of notice as required under Section 138, by ignoring statutory presumption to the
contrary under Section 27 of the G.C.Act and section 114 of the Evidence Act In our view
any other interpretation of the proviso would defeat the very object of the legislation As
observed in Bhaskarans case (supra) if the giving of notice in the context of Clause (b) of
the proviso was the same as the receipt of notice a trickster cheque drawer would get the
premium to avoid receiving the notice by adopting different strategies and escape from
legal consequences of Section 138 of the Act ".

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Therefore, as per the decision of the Supreme court cited supra, the petitioner/complainant
has taken all the necessary steps to send the notice to the correct address and the
examination of D.W.3. an officer from the postal department by the defence himself has
clearly proved that the intimation was given to the respondent/accused, therefore he has
taken all the recourse available to him under law and proved the case of notice being
served on the accused. As rightly pointed out by the learned counsel for the
petitioner/complainant, it is not the case of the respondent/accused that the address given
in the notice is a wrong addresses. Even after the service of notice through Court, the
respondent/accused has not availed the opportunity to pay the amount within 15 days,
therefore, he cannot claim that the statutory notice under Section 138 of Negotiable
Instruments Act, has not been properly served on him. In view of the latest Supreme Court
decision cited supra, i.e., (2007) 6 Supreme Court Cases 555, C.C.Alavi Haji vs. Palapetty
Muhammed and another, all the other judgments cited by the learned counsel for the
respondent/accused has no relevance to the facts and circumstances of the present case,
therefore, this court to liable to be set aside and the conviction of lower Court finding the
respondent/accused for the offences under Section 138 of Negotiable Instrumentds Act is
liable to be confirmed.

13. NEXT , coming to the question of sentence, at this point of time, the learned counsel for
the respondent/accused only pleaded that some leniency may be shown to the
respondent/accused.

14. TAKING into consideration the long pending litigation between the
petitioner/complainant and respondent/accused from the year 2002 and the cheque is also
of the year 2002, suffice to state that the respondent/accused will pay a sum of
Rs.1,50,000/- being the cheque amount, to the petitioner/complainant and also a sum of
Rs.30,000/- as compensation to the petitioner/complainant.

In the result the criminal revision is allowed. The order of acquittal passed by the first
Appellate Court is set aside. The conviction passed by the lower Court for the offence
under Section 138 of Negotiable Instrument Act is confirmed and the sentence imposed by
the lower Court below is modified to the effect that the petitioner shall pay the entire cheque
amount of Rs.1,50,000/-(Rupees One Lakh and Fifty only) and also a compensation of
Rs.30,000/-(Rupees Thirty Thousand only) to the petitioner/complainant the depositing the
same to the credit of C.C.No. 1896 of 2002 on the file of XV Metropolitan Magistrate,
George Town, Chennai within a period of four months from the date of receipt of a copy of
this order. On such deposit, the lower Court, after ascertaining the correct details, shall pay

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the amount to the petitioner/complainant forthwith.

15. ON failure to comply with the above condition, the respondent/accused shall be
sentenced to undergo two months simple imprisonment and the lower Court is at liberty to
take steps to arrest the respondent/accused and to commit him to prison, to undergo the
two months simple imprisonment.

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