Crl.R.C.No.21 of 2020

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 15.03.2023

CORAM :

THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN

Crl.R.C.No.21 of 2020

and

Crl.M.P.No.117 of 2020

A.Durai Ramachandran .. Petitioner

Vs.

K.Mohan Babu

..Respondent

PRAYER : Criminal Revision Case has been filed under sections 397

read with 401 of Criminal Procedure Code to set aside the judgment in

Crl.A.No.106 of 2018 dated 25.10.2019 on the file of the III Additional

District Sessions Judge, Salem confirming the sentence imposed in the

judgment dated 27.04.2018 in S.T.C.No.944 of 2016 on the file of the

Judicial Magistrate No.II, Salem and to allow the above Criminal

Revision.

For Petitioner

:

Mr.R.Nalliyappan

For Respondent

:

Door locked

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Crl.R.C.No.21 of 2020

ORDER

This Criminal Revision Case is directed against the concurrent

findings of the Courts below dismissing the complaint preferred under

Section 138 of Negotiable Instruments Act.

2

The short point for consideration in this revision case is

whether the statutory notice sent to the accused returned unserved can be

deemed to be service completed?. The complaint under Section 138 of

N.I.Act was filed by the petitioner herein before the Judicial Magistrate

II, Salem on the premise that the accused/respondent borrowed

Rs.5,80,000/- on 15.03.2016 to meet out his business expenses and

family expenses. He gave a post dated cheque while borrowing the

money. When the cheque dated 15.04.2016 for a sum of Rs.5,80,000/-

presented for collection, the same was returned for the reason

“insufficient funds”. On receiving the intimation dated 04.05.2016 the

complainant caused statutory notice under Section 138 of N.I.Act. The

said notice dated 11.05.2016 returned with a postal endorsement “door

locked”. Which he received on 25.05.2016 thereafter, the complaint was

filed and taken cognizance by the Magistrate.

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Crl.R.C.No.21 of 2020

3

To prove his complaint, the complainant has deposed before

the Court and marked 4 documents. On the side of the accused, neither

document nor oral evidence adduced. However the Trial Court dismissed

the complaint on the ground that (i) the statutory notice was not duly

served on the accused, (ii) the complainant has not proved his source of

money to advance to the accused a sum of Rs.5,80,000/- (iii) the accused

has put forth his defence that the cheque was given to one Pradeep, when

the accused and Pradeep were jointly carrying on bakery business as

partners. The cheque given blank to the friend of Pradeep, been misused

(iv) the complainant though claims that the loan was given for expansion

of the accused business and family expenses, in the cross examination,

the complainant admits that he is not aware of the accused place of

business.

4

Since the Trial Court dismissed the complaint, appeal was

preferred before the III Additional District and Sessions Judge, Salem in

C.A.No.106 of 2018. The Lower Appellate Court after re-appreciation of

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Crl.R.C.No.21 of 2020

evidence confirmed the judgment of the Trial Court and dismissed the

appeal.

5

The learned counsel for the revision petitioner/complainant

submitted that when the signature found in the cheque is admitted by the

accused, it is his burden to prove that the cheque was not issued to

discharge the debt amount which is found in the cheque. Having not

examined witnesses or adduced documents to discharge the said burden,

the Court below ought not to have been dismissed the complaint.

6

The learned counsel also submitted that the paying capacity

of the holder of the cheque is immaterial once the drawer admits the

signature found in the cheque. The Trial Court had erroneously observed

the place of accused business not known to t