The main legal point established in the judgment is that when a notice is sent to the correct address, the service of notice is deemed to be proper, and the burden shifts on the person to prove that he was deliberately not served the statutory notice.

1. By the judgment dated 21.04.2008 in C.C.No.247 of 2006 passed by the learned Judicial Magistrate No.II, Gobichettipalayam, the petitioner was convicted for the offence punishable under Section 138 of the Negotiable Instruments Act and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.5,000/-, in default, to undergo two months simple imprisonment. Aggrieved by the same, the petitioner filed Crl.A.No.122 of 2008 and the same was dismissed by the learned Additional District and Sessions Judge, Fast Track Court No.II, Gobichettipalayam vide order dated 22.04.2010. It is against those concurrent decisions of the court below, the present Criminal Revision Case is filed.

2. The case of the complainant/respondent in brief is as follows:

The first accused is a firm and the second accused is the partner of the said firm. The accused have borrowed a sum of Rs.1,00,000/- from the complainant for development of their business and on such borrowal, a post dated cheque towards repayment of the cheque amount was issued. According to the complainant, inspite of repeated demands, the complainant did not repay the borrowed amount. Ultimately, the accused instructed the complainant to present the cheque for collection. Accordingly, the complainant presented the cheque for clearance, but it was dishonoured on the same day for the reason that Account was closed. Therefore, the complainant/respondent issued a statutory notice dated 03.10.2006 calling upon the petitioner/accused to repay the cheque amount, but there was no response. Hence, the complaint under Section 138 of the Negotiable Instruments Act was filed.

3. The only ground raised by the learned counsel for the petitioner in this criminal revision case is that the petitioner has shifted his residence, hence the statutory notice said to have been issued by the complainant has not been received by him. When the statutory notice has not been received by the accused, as per the judgments of this Court reported in 2008 1 DCR 648 [A.Muthusamy vs. G.Ayyappan] and [2011] 1 MLJ Crl.752 [K.Rajamanickam vs. P.Arumugam], it will amount to insufficient service of notice. He would further submit that this Court has also held that even the postal endorsement "not claimed" cannot be equated to "refused" and when the postal endorsement found on a notice issued to a person is "not claimed", it cannot be concluded that the petitioner/accused had refused to receive the same, when it was sought to be delivered to him.

4. Learned counsel for the petitioner would further rely upon the Hon'ble Supreme Court Judgment reported in 2010 STPL(LE) 43320 SC [M.D.Thomas vs. P.S.Jaleel and another] wherein the Apex Court has held that even the notice received by the family member of the accused will not be enough to prove that service of notice on the accused is completed. Therefore, he would contend that when the notice has not been served, the conviction ordered by the trial Court and confirmed by the first appellate Court is not correct. He would also submit that the petitioner was only a partner of the firm at the relevant point of time and in fact the account itself was closed and consequently, the Over Draft facility available to the firm also has been cancelled. Therefore, the very cheque issued for payment of the amount in the name of the firm will not bind the petitioners in any manner. Accordingly, the learned counsel for the petitioner would pray for setting aside the conviction and sentence imposed on him.

5. Learned counsel appearing for the respondent/complainant categorically stated that as per Ex.D1 notice, the petitioner/accused has stated that he had surrendered all the cheque bearing Nos.891885 to 891900; however, the disputed cheque, viz., Ex.P1 is bearing No.993831. Therefore, even as per the admission of the petitioner/accused the dishonoured cheque was not surrendered. Accordingly, he would submit that the judgments rendered by both the Courts below