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2019 Supreme(Mad) 2118
IN THE HIGH COURT OF MADRAS AT MADURAI BENCH
V. BHARATHIDASAN, J.
K. Manoharan - Appellant
Versus
N. Kamatchi Reddiar - Respondent
Crl. O.P. (MD) No. 11647 of 2014, M.P. (MD) Nos. 1 and 2 of 2014
Decided On : 22-08-2019
Advocate Appeared:
For the Appellant : S. Natarajan
For the Respondent: V. Sasikumar
Headnote:
Negotiable Instruments Act, 1881 - Section 138 - General Clauses Act, 1897 - Section 27 – Bank - envisages application of the penal provisions - not receive the demand notice - learned counsel appearing for the petitioner submitted that the petitioner is the eldest son of the complainant. He was residing at Door Chennai-116 and he was working as a Project Manager in one Tele Ventures Private Limited, West CIT Nagar at Chennai up to - Thereafter, he discontinued his work. Before his marriage, he maintained an account in ICICI Bank Limited at Branch, and the said account was operated by his father/complainant disputed book was received by the petitioner from the bank in the year 2008, and for his marriage and other expenses, some blank signed were given to his father. After the marriage, in the year 2009, there was some dispute in his family and they are not in talking terms. Now, using one of complaint has been filed – Held, Insofar as the question of disclosure of necessary particulars with regard to the issue of notice in terms of proviso (b) of Section 138 of the Act, in order to enable the Court to draw presumption or inference either under Section 27 of the G.C. Act or Section 114 of the Evidence Act, is concerned, there is no material difference between the two provisions. In our opinion, therefore, when the notice is sent by registered post by correctly addressing the drawer of mandatory requirement of issue of notice in terms of Clause (b) of proviso to Section 138 of the Act stands complied with - It is needless to that complaint must contain basic facts regarding mode and manner of the issuance of notice to the drawer of - It is well settled that at the time of taking cognizance of the complaint under Section 138 of Act Court is required to be prima facie satisfied that a case under the said Section is made out and mandatory statutory procedural requirements have been complied with. It is then for the drawer to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the cover was incorrect or that letter was never tendered or that the report of the postman was incorrect - learned counsel appearing for the respondent contended that as the notice has been sent to the petitioners address, there is a presumption under Section 27 of General Clauses Act, 1897, that service deemed to be effected on the accused learned counsel also relied upon the judgment of Supreme Court in - It is true that there is a presumption under Section 27 of the General Clauses Act, 1897 that if the notice is sent by a registered post to the correct address of the drawer and as such, the requirement of issuance of notice stands complied with - Then, it is for the drawer to rebut the presumption regarding the service of notice - Supreme Court in the above referred case has held as follows - it is an admitted fact that letter was not addressed to the petitioners address but it was sent to the office, where the petitioners wife was working - As already stated even in acknowledgement, no signature is found for receipt of notice. In the above circumstances, this Court is of the view that notice has not been sent to correct address of petitioner and notice was also not served on him properly - Petition allowed
ORDER :
V. BHARATHIDASAN, J.
1. The petitioner is the sole accused in C.C. No. 2247 of 2013 on the file of the learned Judicial Magistrate No. II, Sattur, for an offence under Section 138 of the Negotiable Instruments Act, 1881. To quash the same, the present petition has been filed.
2. The case of the respondent/complainant is that the petitioner/accused, is his eldest son and he along with his wife are working in Chennai. The petitioner has received a sum of Rs. 80,00,000/- [Rupees Eighty Lakhs only] in the month of May, 2012, for the purpose of purchasing a house in Chennai. In order to repay the above loan, he issued a cheque drawn on ICICI Bank, Sivakasi Branch, for a sum of Rs. 80,00,000/-[Rupees Eighty Lakhs only] bearing No. 960720. When the same was presented for encashment before the complainant's bank, it has been returned on the ground of 'Insufficient Funds'. Thereafter, the complainant sent a legal notice dated 14.05.2013 through speed post, calling upon the petitioner to pay the amount, the petitioner received the legal notice on 16.05.2013, but, he neither replied nor came forward to pay the amount. Hence, the complaint has been filed. The learned Judicial Magistrate has taken cognizance of the offence and also issued summons to the petitioner. Now, to quash the same, the present petition has been filed.
3. Mr. S. Natarajan, learned counsel appearing for the petitioner submitted that the petitioner is the eldest son of the complainant. He was residing at Door No. 226/1A, Varshana Flats - F, Theru Veethi Amman Koil Street, Porur, Chennai-116 and he was working as a Project Manager in one Pranav Tele Ventures Private Limited, West CIT Nagar at Chennai, upto February, 2012. Thereafter, he discontinued his work. Before his marriage, he maintained an account in ICICI Bank Limited at Sivakasi Branch, and the said account was operated by his father/complainant. The disputed cheque book was received by the petitioner from the bank in the year 2008, and for his marriage and other expenses, some blank signed cheques were given to his father. After the marriage, in the year 2009, there was some dispute in his family and they are not in talking terms. Now, using one of the cheques, the complaint has been filed.
4. The learned counsel appearing for the petitioner mainly contended that, after the cheque being returned by the drawee bank, the complainant said to have issued a legal notice demanding payment. But, no such demand notice was sent to the petitioner, and the notice addressed to one L & T, Infotech, Poonamallee High Road, Chennai, under the care of his wife K. Sharmila Devi, where neither the petitioner nor his wife was working. That apart, on a perusal of the acknowledgement produced along with the complaint, it could be seen that no signature is found in the acknowledgement, and the petitioner did not receive the demand notice. Without sending the demand notice to the proper address of the petitioner, the complaint has been filed.
5. According to the learned counsel, issuing proper demand notice and communicating the same is one of the ingredients of the offence under Section 138 of the Negotiable Instruments Act, 1881 [hereinafter referred to as "the Act"]. In the absence of a proper service of demand notice to the petitioner, the complaint cannot be maintained. The learned counsel also produced the certified copy of the acknowledgement filed along with the complaint.
6. Per contra, Mr. V. Sasikumar, learned counsel appearing for the respondent/complainant contended that since the address of the petitioner was not disclosed to the complainant, notice has been sent to the address, where the petitioner's wife was working and the notice was also duly received by them. Despite receipt of notice, the petitioner did not come forward to pay the amount. Hence, the complaint has been filed. The other contentions raised by the petitioner can only be proved during trial and the complaint cannot be quashed on that ground.
7. I have
