IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 11/03/2004

CORAM

THE HONOURABLE MRS. JUSTICE R.BANUMATHI

CRL.APPEAL No.22 of 1998

Nagasubramanian ... Appellant /

Complainant

-Vs-

1.M/s.Hope Knitting Home,

a firm, rep. by its partner

A.Selvam Anthony Raj.

2.A.Selvam Anthony Raj ... Respondent/

3.A.Bastin Yesudass Accused.

Criminal Appeal against the judgment dated 16.10.1997 made in

C.C. No.115 of 1996 on the file of Judicial Magistrate No.3, Salem.

!For appellant : Mr. B.Sriramulyu,

Senior Advocate,

for M/s.N.A.Ravindran and

V.Murugesan.

^For respondents: Mr. K.M.Manimaran,

for RR.1 and 2

Mr.P.Jegadeesan, for R.3

:J U D G M E N T

Complainant has come forward with this appeal against the order of

acquittal, acquitting the Respondents / Accused 1 to 3 under Sec.138

Negotiable Instruments Act in C.C.No.115 of 1996 on the file of Judicial

Magistrate No.3, Salem by the Judgment dated 16.10.1997.

2. The relevant facts could briefly be stated thus:- A.1 - M/s. Hope

Knitting Home is a partnership firm, which had business transaction with the

Complainant on credit. A.2 and A.3 are the partners of A.1 firm. In the

course of business dealings, A.2 and A.3 representing as partners of A.1 firm,

issued a cheque No.C3/94, 421769 dated 05.09.1995 drawn on Lakshmi Vilas Bank

Limited, Tirupur for a sum of Rs.1,75,750/- under Ex.P.2 in favour of the

Complainant for the amount due on credit purchase. The Complainant presented

Ex.P.2 - cheque for collection for the second time in his bank viz., Bank of

Baroda. The Cheque - Ex.P.2 was returned with Ex.P.3 - Memo dated 22.12.1995

with an endorsement " Insufficient Funds " in the Account of the Accused. On

28.12.1995, the Complainant's Bank intimated the Complainant regarding the

dishonour of the Cheque under Ex.P.4 - Memo.

3. The Complainant issued Ex.P.5 - Statutory Notice to the Accused on

30.12.1995. A.1 and A.2 refused to receive the notice and the same was

returned as "Intimated Unclaimed". Exs.P.6 and P.7 are the returned Postal

Covers. A.3 was served with notice and Ex.P.8 is the acknowledgement dated

01.01.1996. The Accused did not pay the Cheque amount even after 15 days.

Hence, the Complaint was filed on 15.02.1 996 under Sec.138 Negotiable

Instruments Act.

4. To substantiate the averments in the complaint, in the Trial

Court, Complainant was examined as P.W.1 and Bank Officials were examined as

P.W.2 (Rajan) and P.W.3 (Sundararajan). No evidence was adduced onbehalf of

the Accused. The Accused raised the defence that there was no proper service

of notice. They have also raised the point that the complaint was not filed

within the stipulated time i.e. on or before 14.02.1996, but filed on

15.02.1996, which is barred by limitation.

5. Upon consideration of the evidence adduced and the contentions

urged, the Trial Court acquitted the Respondents / Accused 1 to 3 interalia on

the following findings:-

(i) Notice sent to A.1 and A.2 was returned under

Exs.P.6 and P.7 as " Intimated Unclaimed " and that there was no

proper service of notice upon A.1 and A.2;

(ii) That notice sent to A.3 was served upon one

Mohan, who had received the same onbehalf of

one Nirmal Textiles Process and that there is

no link evidence as to how the said Mohan is

connected to Bastin Yesudass - A.3 and hence,

there is no proper service of notice upon A.3;

(iii)That the Complaint filed on 15.02.1996 is not filed within

the stipulated time.

6. Aggrieved over the same, the Complainant has come forward with

this appeal. Assailing the findings and conclusions of the Trial Court, the

learned Senior counsel Mr.B.Sriramulu contended that the findings of the Trial

Court faulting the Complainant in not taking further steps in issuing the

second notice is erroneous. Placing reliance upon the case of K.Bhaskaran v.

Sankaran Vaidhyan Balan (A.I.R. 1999 Supreme Court 3762), it is contended

that mere sending of notice to the address of the Accused is sufficient to

raise the presumption of " Deemed service of Notice " or otherwise