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2025 Supreme(Online)(Mad) 68211
IN THE HIGH COURT OF JUDICATURE AT MADRAS
M. NIRMAL KUMAR, J
M.S.Durairaj – Appellant
Versus
M.Ravikumar – Respondent
Criminal Appeal | C.A.No.66 of 2015
For the Appellant(s): M/s.A.R.Nixon
For the Respondent(s): Ms.T.Harshana, Legal aid counsel
The service of statutory notice under Section 138 is deemed valid if sent to the known address of the drawer, regardless of refusal.
Headnote:(A) Negotiable Instruments Act, 1881 - Sections 138, 118, and 139 - Dishonor of cheque - Appellant filed complaint under Section 138, convicted by trial Court; appellate court reversed the conviction due to alleged improper service of statutory notice - Court held that notice sent to the address known to complainant constituted deemed service under Section 27 of the General Clauses Act - Respondent, having admitted to the signature on the cheque, did not rebut presumption of consideration. (Paras 6, 11, and 13)
(B) Appeals in criminal cases - Standards of review - Appellate courts should not substitute their judgment for that of the trial court unless the findings are found to be perverse or lacking evidentiary support. (Paras 12 and 14)
Facts of the case:
The appellant claimed the respondent borrowed Rs.10 lakhs and issued a cheque which was dishonored; the respondent claimed only a loan of Rs.3 lakhs was taken.
Findings of Court:
The trial Court’s conviction was upheld, establishing that statutory notice's proper service was implied, and the respondent failed to prove a differing narrative.
Issues: The primary issue addressed was the adequacy of service of notice per Section 138 and whether the cheque's signature created a presumption of liability.
Ratio Decidendi: The court concluded that the proper service of notice was satisfied, affirming the trial court’s findings and rejecting the contrary appellate judgment.
Result: Criminal Appeal allowed, judgment of trial Court confirmed.
| Table of Content |
|---|
| 1. complaint under n.i. act for dishonored cheque. (Para 1 , 2) |
| 2. disputed notice service and cheque liability. (Para 5 , 6) |
| 3. error in appellate court's ruling on service. (Para 11) |
| 4. appeal allowed, trial court judgment confirmed. (Para 14) |
ORDER
The appellant/complainant filed a private complaint against the respondent under Section 138 of the Negotiable Instruments Act, 1881 (in short, 'the Act') in STC No.204 of 2014. The trial Court, by judgment dated 11.09.2015, convicted the respondent and sentenced him to undergo six months simple imprisonment and also directed to pay cheque amount of Rs.10 lakhs as compensation.
2.Aggrieved over the same, the respondent preferred an appeal before the Sessions Court in C.A. No.66 of 2015. The learned Sessions Judge by judgment dated 07.03.2016, allowed the appeal, setting aside the conviction and sentence imposed by the trial Court. Against which, the present appeal has been filed.
3. The complaint filed by the appellant is that the appellant and the respondent are the friends known to each other. The respondent is the Proprietor of M/s.Suba Dharani Food Products and the respondent had approached the appellant on 05.05.2014 for financial assistance of Rs.10 lakhs to develop the Food Products business. On the same day, the appellant gave a sum of Rs.10 lakhs to the respondent and in repayment and discharge of the liability, the respondent issued a post-dated cheque on 07.08.2014, for a sum of Rs.10 lakhs drawn on State Bank of India, Hosur Branch. On informing the respondent, the appellant presented the said cheque on 07.08.2014 through his bankers viz, Axis Bank, Hosur Branch. But the same was returned on the same day with return memo, for the reason ''funds insufficient''. The appellant sent a statutory notice on 05.09.2014 through RPAD as well as by private courier. The respondent refused to receive the notice sent through RPAD and returned on 06.09.2014, the courier cover was also returned on 08.09.2014 and thereby the notice could not be served. Notices sent through RPAD as well as through courier were returned with an endorsement as ''party refused''. Thereafter, the appellant filed a complaint and he had examined himself as PW1 and marked Exs.P1 to P8. The respondent examined himself as DW1 and the Manager of Indian Bank, Jujuwadi Branch as DW2 and marked Exs.D1 to D3.
4. In the present case, the respondent himself examined as DW1 and he not disputed the relationship and receiving the amount towards loan from the appellant, but he takes a stand that during the year 2013, he had taken a loan of Rs.3 lakhs from the appellant and Rs.1 lakh paid through cheque and later Rs.75,000/- has been paid twice in cash. The repayment of Rs.1 lakh by cheque is reflected in his statement of Bank Account maintained with the Indian Bank, marked as Ex.D2 and further, he alleges that nine blank cheques received by the appellant and those cheques were signed but unfilled and later, one of the cheques mis-used by filling up Rs.10 lakhs and presented in the bank, which is marked as Ex.P1.
5. The learned counsel submitted that the appellant examined as PW1 and the issuance of statutory notice through a registered post and by Courier. The respondent not denied the cheque or his signature therein, but he takes a stand that the cheque was not issued for discharge of liability for Rs.10 lakhs. Further, a detailed cross-examination was made, but could not cull out any answer in his favour and the trial Court, finding that the respondent not denied the signature and the cheque, came to the conclusion that Sections 118 and 139 of the Act attracted. But the respondent contended that statutory notice sent to wrong address. The respondent not specifically denied that no such Company in the name of M/s.Subha Dharani Food Products is existing and he has nothing to do with the said M/s.Suba Dharani Food Products. The admitted position is that the respondent is Proprietor of M/s.Subha Dharani Food Products
