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2006(1) Bankmann 155
ANDHRA PRADESH HIGH COURT
C.Y. Somayajulu, J.
M. Ramesh — Appellant
versus
Vankadara Sunil Kumar
and another — Respondents
Crl. P. No. 3917 of 2004
Decided on 11-07-2005
Counsel for the Parties:
For the Petitioner:P. Veera Reddy, Advocate.
For the Respondent No. 1:K. Rathanga Pani Reddy, Advocate.
For the Respondent No. 2: Public Prosecution.
IMPORTANT POINT
While considering a petition u/s 482 Cr.P.C. the court has to consider averment in the complaint only, but not the defense of accused.
Headnote:(i) Negotiable Instruments Act, 1881—Sections 138—Dishonour of cheque—Complaint against proprietor of a proprietorship concern—Petition for quashment of complaint on plea that father of accused and not the petitioner was proprietor of firm —While considering a petition u/s. 482 Cr.P.C, Court has to consider averments in complaint alone and not defense of accused—Since Question of ownership and authorization to issue cheques can only be decided after trial—Hence no ground to quash complaint —Complaint held not liable to be quashed. (Para 4)
(ii) Negotiable Instruments Act, 1881—Section 138—General clauses Act—Section 27 —Dishonour of cheque—Notice—Petition for quashment of complaint on plea that statutory notice was returned unclaimed—Notice under certificate of posting also sent on the same day on which statutory notice was sent by registered post—As no mandate u/s. 138 that notice has to be sent by registered post alone—Hence Notice sent under certificate of posting would also be valid statutory notice—Question whether address mentioned in certificate of posting is correct or not can be decided only after trial—Contention that was no valid statutory notice found unacceptable— No ground to quash complaint. (Paras 6,7)
Facts of the cases:
A. The Respondent 1 herein in the instant case filed a complaint u/s. 138 of Negotiable Instruments Act against petitioner alleging that cheque issued by him on behalf of his proprietorship concern was returned on ground of “insufficient funds”.
B. Present petition has been preferred by petitioner for quashment of complaint on plea that since his father was the proprietor of firm he could not be held liable and that there was no valid service of statutory notice as it was returned unclaimed.
C.Findings of the Court : The Court held that since Question of ownership and authorization to issue cheques can only be decided after trial, there was no ground to quash complaint. The Court further held that since notice under certificate of posting was also sent on the same day on which statutory notice was sent by registered post and since there being no mandate u/s. 138 that notice has to be sent by registered post alone, Notice sent under certificate of posting would also be valid statutory notice. As question whether address mentioned in certificate of posting was correct or not could be decided only after trial, contention that there was no valid statutory notice was found unacceptable.
D.In the result, petition was dismissed in absence of any grounds to quash complaint.
Result: Petition Dismissed.
C.Y. Somayajulu, J.—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 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 the 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. PC., this Court has to consider the averments in the complaint only, but not the defence of the accused. Here, I feel it is 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, Periyakulam 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 cheques 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 show that the statutory notice was returned unclaimed. In view of the ratio in K. Bhaskaran v. Sankaran Vaidhyan Balan’s1, 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.
Petition dismissed.
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