Michel Anthony vs P.S. Chandraqsekara Raja

P. Murgesen, J.—This Revision has been filed against the judgment dated 23.12.2005 rendered in C.A.No. 62 of 2004 by the Additional

Sessions Judge (Fast Track Court No.I) Tirunelveli.

The gist of the case is as follows:

Accused received Rs. 1,21,000/-. from the complainant promising to repay the same, and he issued three cheques bearing Nos. 268644, 268642,

268643 for a sum of Rs. 46,000/-, Rs. 50,000/- and Rs. 25,000/- respectively. When the cheques were presented in the Bank, they were not

honoured and returned with an endorsement ''insufficient funds''. As per request of the. accused, the complainant presented the cheques again on

06.06.2003 and the same was returned with a memo dated 09.06.2003. It was informed to the complainant on 17.06.2003. On 01.07.2003

notice was issued to the accused, but the accused refused to receive it. He did not send any reply. Hence, the complainant preferred the complaint.

Before the trial Court, P.W.1 was examined. Exs.P1 to P.8 were marked.

On consideration of evidence, learned Judicial Magistrate, Sankarankoil found the accused guilty u/s 138 N.I.C. and sentenced him to undergo

Simple Imprisonment for a period of one year and to pay a fine of Rs. 5,000/-. in default to undergo one month Simple Imprisonment.

Aggrieved by the said judgment, the accused preferred an appeal and the appellate Authority dismissed the appeal confirming the judgment of

the trial Court.

Challenging the said judgment, the accused had preferred the present appeal.

The point for consideration is:

Whether the accused was guilty u/s 138 Negotiable Instruments Act?

The Point: The power of Revisional Court is limited and the Revisional Court can interfere with the order of trial Court when there is

miscarriage of justice, any Procedural irregularity or material evidence has been overlooked by the trial Court.

The accused in S.T.C. No. 1911 of 2003 is the revision petitioner. The complainant preferred, a complaint on the basis of three cheques,

namely, (1) Cheque bearing No. 268644 for a sum of Rs. 46,000/- under Ex.P.1 (2) Cheque bearing No. 268642 dated 02.01.2003. for a sum

of Rs. 50,000/-under Ex.P.2 and (3) a Cheque bearing No. 268643 dated 05.01.2003 under Ex.P.3. When the cheques were presented for

collection in the Bank on 24.04.2003, it was returned with an endorsement ''insufficiency of funds''. At request of the accused, the complainant

again presented the cheque for collection on 06.06.2003 but that was also returned on 09.06.2003 with an endorsement ''insufficiency of funds''.

Hence, a notice dated 01.07.2003 was sent to the accused. But it was not received by the accused and the same was returned with an

endorsement, ''there was no such addressee''. The address was given as

The only contention raised by the counsel for the appellant is that there, is no valid service. He relied on the decision reported in V. Raja

Kumari Vs. P. Subbarama Naidu and Another, and argued that the burden to show that the accused had managed to get an incorrect postal

endorsement, lies on the complainant. In the above decision, it was held as follows:

Burden was on the complainant to show that the accused had managed to get an incorrect postal endorsement made. What is the effect of it had to

be considered during trial, as the statutory scheme unmistakably shows the burden is on the complainant to show the service of notice.

The accused and the complainant are friends. Notice was sent to the address of the accused. The address mentinoed in the postal cover

Ex.P.7. is not disputed. Learned Counsel for the complainant pointed out that summon was served on the accused in the same address. This was

also not disputed by the accused.

Learned Counsel for the accused/revision petitioner vehemntly argued that the complainant must raise a plea to that effect. To prove it, learned

Counsel for the complainant has staed that in paragraph 5 of the complaint, it was stated that the accused knowing the contents of the notice,

refused to receive it. P.W.1 has stated that the accused refused to receive the notice and the same was returned. The accused did not get into the

box to prove, his case. To prove his case, learned Counsel for the appellant relied on the decision reported in P. Eswaran Vs. J.A. Abdul

Hameed, and argued that the case of the complainant can be proved by preponderance of probabilities. No doubt, as per the decision cited

above, the accused had not rebutted the presumption contemplated u/s 139 of the Act by eliciting answers in the cross excamination of the

evidence of P.W.1, and also through circumstance and preponderance of probabilities of the case.

In this case, learned Counsel for the accused though contended that it was false endorsement, he is not able to show that the complainant, was

clever enough to get false endorsement. Moreover, the accused had not chosen to get into the box. Further, when questioned under 313 Cr.P.C.

also, he did not say that notice was not served as per law or notice was returned with false endorsement with the connivance of the complainant.

So, on a careful consideration of evidence, I find that there is valid service of notice and the accused evaded to receive the notice. So, there is no

irregularity or material evidence has been overlooked by the trial Court and hence, there is no reason to differ with the findings of the Courts

below.

In the result, the revision is dismissed. The judgment dated 23.12.2005 rendered in C.A. No. 62 of 2004 by the Additional Sessions Judge

(Fast Track Court No.I) Tirunelveli confirming the Judgment 04.02.2004 rendered in S.T.C. No. 1911 of 2003 by the Judicial Magistrate,

Sankarankoil, is confirmed.