Notice returned as "unclaimed" can be treated as valid notice.

The appeal is directed against the Judgment of the Judicial Magistrate, Thirumangalam in C.C.No.1454 of 1999 dated 7.6.2005.

2. Thebrief facts of the case of the complainant are as follows: a) The first accused is a Commission Agent and the second accused is his partner in the business. The complainant used to purchase the agricultural grains from the nearby villages in bulk quantities and handover the same to the first accused for sale. The first accused used to sell those grains and handover the amount due to the complainant after deducting his commission. It is alleged in the complaint that during November 1998, the complainant handed over the agricultural produce to the accused for sale and the accused is liable to return a sum of Rs.4,86,000/- after deducting his commission. So, in order to discharge a sum of Rs.4,86,000/-, the accused gave two cheques bearing Nos.257282 & 257283 drawn on Tamil Nadu Mercantile Bank Ltd. for a sum of Rs.2,43,000/- each.

b) The second accused was incharge of the Partnership Firm. When the cheques were presented for collection to the Canara Bank, Kallikudi Branch on 27.5.1999, the same were returned on 1.6.1999 with an endorsement Funds insufficient. Hence on 8.6.1999, the complainant sent a lawyer notice to the accused demanding a sum of Rs.4,86,000/- with interest.

Even though the Postman concerned informed about the notice to the accused on 10.6.1999, the notice sent by post was returned with a postal endorsement as unclaimed. Hence the complaint.

3. The complainant in order to bring home the charges against the accused examined P.Ws 1 to 3 and filed Ex.P1 to P17. On the side of defence, the second accused was examined, as D.W.1 and they have not chosen to file any documentary evidence.

4. On consideration of the entire evidence on record, the learned Judicial Magistrate, Thirumangalam, found the accused not guilty and acquitted them of the charges levelled against them.

5. Challenging the judgment of the learned Judicial Magistrate, Thirumangalam, the above appeal has been preferred by the complainant /appellant.

6. Point for Determination:

1. Whether the respondents/accused have committed the offence under Section 138 of the Negotiable Instruments Act ?

POINTS FOR DETERMINATION:

7. The learned trial Court rejected the case of the complainant on two grounds namely that there was no valid notice and there was no enforceable debt.

8. P.W.1-Varadharaj had dealings with the respondents/ accused. The complaint was instituted on the basis of the two cheques Exs P1 and P2. According to the complainant, the first accused is a Commission Agent and the second accused is his partner in the business. The accused used to get the agricultural grains from the complainant in bulk quantity, sell those grains and handover the amount due to the complainant after deducting his commission. It is also alleged that the respondents have dealing with the complainant till 1998.

9. But in paragraph No.4 of the complaint it is specifically stated that the first accused received the agricultural produce from the complainant and after deducting the commission, he is liable to pay a sum of Rs.4,86,000/-. So, in order to discharge the liability, he handed over two cheques bearing Nos.257282-Ex.P1 & 257283-Ex.P2 drawn on Tamil Nadu Mercantile Bank Ltd. for a sum of Rs.2,43,000/- each. The Account No of the accused is 301156. The cheques were issued by the accused. This was spoken by P.W.3 who was the Assistant Manager of the Tamil Nadu Mercantile Bank. The cheques were presented through Canara Bank in which the complainant had his Bank Account. The cheques were sent to Mercantile Bank for collection, but the same were dishonoured.

P.W.2 who is the Branch Manager of Canara Bank spoke about the dishonour of the cheques. Therefore, a lawyers notice -Ex.P8 was issued to the accused. Ex.P9 series is the postal receipts. Ex.P10 would show that the accused refused to receive the notice issued by the compl