THE HONOURABLE MR v. P.B.James Baby

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 24.03.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCrl.A.No.1016 of 2000V.K.Santhosh Kumar .. Appellant/ComplainantVs.P.B.James Baby .. Respondent/AccusedPrayer: This appeal has been preferred against Judgment dated03.10.2000, in C.C.No.15 of 2000, on the file of the JudicialMagistrate, Valparai. For Appellant : Mr.SU.Srinivasan For Respondent : No appearanceJUDGMENTThis appeal has been preferred against the judgment inC.C.No.15 of 2000 on the file of the Judicial Magistrate,Valparai. The case had arisen out of a private complaint filed bythe complainant under Section 200 of Cr.P.C., for an offence underSection 138 of the Negotiable Instruments Act against the accused.After recording the sworn statement of the complainant, thecomplaint was taken on file by the learned Judicial Magistrate.2. The averments in the complaint in brief are as follows:-The complainant knows the accused for more than 20 yearsand that the accused is having business at Salakudi, Thiruchur, inKerala State. On 20.12.1999 the accused had borrowed a sum ofRs.90,000/- and issued a cheque dated 26.12.1999 drawn in favourof the complainant for a sum of Rs.90,000/- on Union Bank ofIndia. When the cheque was presented on 03.02.2000 in Union Bankof India, the same was returned with an endorsement that there isno sufficient fund in the account of the drawer. Hence, thecomplaint.3. After taking the complaint on file the learned JudicialMagistrate issued summons to the accused and on appearance of the https://hcservices.ecourts.gov.in/hcservices/ accused, the learned Magistrate has furnished copies to theaccused under Section 207 of the Cr.P.C., and when questioned, theaccused pleaded not guilty. On the side of the complainant P.W.1and P.W.2 were examined and Ex.P.1 to Ex.P.4 were marked.4. P.W.1 in his evidence would state that he is residing atValparai and he knows the accused while he was residing atValparai and that at present the accused is residing in Salakudi,Kerala State, and he was a contractor in 'Tantea' and the he knowsvery will of the accused and on 20.12.1999 the accused hadborrowed Rs.90,000/- as hand loan and to discharge the said loan,he(accused) had drawn a cheque in Union Bank of India on26.12.1999 for a sum of Rs.90,000/- and when he presented thecheque on 3.2.2000, the same was bounced on the ground that thereis no sufficient funds in the account of the drawer. Ex.P.1 isthe cheque issued by the accused dated 26.12.1999. Ex.P.2 is thememo issued by the bank dated 3.4.2000 stating the reason for thereturn of the cheque. Ex.P.3 is the copy of the notice sent bythe complainant to the accused. Ex.P.4 is the return postal covercontaining the original of Ex.P.3.5. P.W.2 is an accountant in Union Bank of India. He woulddepose that the cheque bearing No.10509 was issued to the drawerby Union Bank of India and that the said cheque came to their bankfor encashment on 3.2.2000 and the same was returned on the groundthat there is no sufficient funds in the account of the drawer.Ex.P.2 is the memo sent by Union Bank of India along with Ex.P.1at the time of return of the same.6. When incriminating circumstances were put to the accusedhe would totally deny his complicity with the crime. The accusedhas himself examined as D.W.1.7. After going through the oral and documentary evidence, thelearned trial judge on the ground that there was no proper noticeserved on the accused as required under law, has dismissed thecomplaint. Hence, this appeal by the complainant.8. Now the point for determination in this appeal is whetherthe judgment in C.C.No.15 of 2000 on the file of the JudicialMagistrate, Valpari on the sole ground of improper service ofnotice, is liable to be set aside for the reasons stated in thememorandum of appeal?9. The Point:- 9(a) The learned trial Judge relying on the decisionreported in 1993 Criminal Law Journal 2196, held that theendorsement on the return postal cover containing the originalnotice as unclaimed will not be construed as valid service of https://hcservices.ecourts.gov.in/hcservices/ notice and on that sole ground has held that the complainant isnot entitled to the relief asked for in the complaint underSection 138 of the Negotiable Instruments Act and accordinglydismissed the complaint.9(b) The learned counsel for the appellant relying on 1999(7) SCC 510 (K.Bhaskaran Vs. Sankaran Vaidhyan Balan and Another),and contended that when the notice sent by registered post wasreturned as unclaimed the court should not adopt an interpretationwhich helps a dishonest evader and clips an honest payee as thatwould defeat the very legislative measure. It has been held in theabove said dictum of the Honourable Apex Court as follows:-"Here the notice is returned as unclaimed and notas refused. Will there by any significant differencebetween the two so far as the presumption of service isconcerned? In this connection a reference to Section 27of the General Clauses Act will be useful. The sectionreads thus:27.Meaning of service by post:- Where any CentralAct or Regulation made after the commencement ofthis Act authorises or requires any document to beserved by post, whether the expression 'serve' oreither of the expressions 'give' or 'send' or anyother expression is used, then, unless a differentintention appears, the service shall be deemed tobe effected by properly addressing, pre-paying andposting by registered post, a letter containing thedocument, and unless the contrary is proved, tohave been effected at the time at which the letterwould be delivered in the ordinary course of post'No doubt Section 138 of the Act does not require thatthe notice should be given only by "post". Nonethelessthe principle incorporated in Section 27 (quoted above)can profitably be imported in a case where the senderhas despatched the notice by post with the correctaddress written on it. Then it can be deemed to havebeen served on the sendee unless he proves that is wasnot really served and that he was not responsible forsuch non-service. Any other interpretation can lead to avery tenuous position as the drawer of the cheque who isliable to pay the amount would resort to the strategy ofsubterfuge by successfully avoiding the notice."So under the principle enunciated in the above said dictum of theHonourable Apex Court, it is clear that on mere endorsement on thepostal cover 'unclaimed' it cannot be presumed that there was novalid service of notice. Under Section 27 of the General ClausesAct it is to be presumed that like every ordinary post there was avalid service of notice on the addressee. In this case, from aperusal of Ex.P.4-return postal cover, it is seen that intimation https://hcservices.ecourts.gov.in/hcservices/ was given to the addressee on 12.2.2000 itself. But theaddressee/accused has not claimed the said registered post withinone week from the date of intimation. Only under suchcircumstances, the said registered post was returned to senderwith an endorsement 'unclaimed' and returned to the sender on20.2.2000. So it is clear that the findings of the learned trialjudge that only on the ground of return of notice as 'unclaimed'without going into the merit of the case, warrants interferencefrom this Court. Point is answered accordingly.10. In the result, the appeal is allowed and the judgment inC.C.No.15 of 2000 on the file of the Judicial Magistrate,Valparai, is set aside and the matter is remanded to the trialCourt for giving a findings on merits on the basis of the oral anddocumentary evidence available before the trial Court. Thelearned trail Judge is directed to dispose of the case afterfollowing the formalities contemplated under law within a periodof one month from the date of receipt of copy of this judgment.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.ssvTo,1.The Judicial Magistrate, Valparai.2.The Section Officer,Crl. Section, High Court, Madras.1 cc to Mr.SU.Srinivasan, Advocate, Sr. 18921Crl.A.No.1016 of 2000SGL (CO)kk 27/3