Mr. Srinivasa Miyala vs Sri. Joseph N.M., Lecturer, Sacred Heart First Grade College

Huluvadi G. Ramesh, J.—This appeal is by the complainant assailing the order passed by the Addl. Civil Judge (Sr. Dn.) & JMFC, Puttur in C.C. No. 1474/2004, by order dated 02.05.2008.

According to the complainant, the accused had borrowed a sum of Rs. 1,40,000/- from the complainant and towards repayment of the loan, issued a cheque on 26.05.2003 for the said amount which, when presented for encashment, came to be dishonoured as ''account closed''. Subsequently, on 28.5.2003 he issued a legal notice, which came to be returned as ''not claimed''. Thereafter, complaint came to be filed. The trial Court, after enquiry, has dismissed the complaint. Hence, this appeal.

Heard.

So far as issuance of notice is concerned, according to the complainant, it has been returned with a shara ''as not claimed'', as such, there is deemed service of notice. Further, according to him, the receipts produced at Exs. D1 to D4 by the accused are in connection with the earlier transaction when he was running finance company. Even the evidence of D.W. 3 who was working as clerk in the complainant''s office cannot be accepted, as the transaction in the case on hand is of the year 2003. So far as the loan borrowed by the accused earlier during 1998 is concerned, it has been admitted by the complainant that it has been repaid and the cheque in question has been issued for the subsequent transaction after the company was closed.

According to the learned Counsel for the accused, there is no due service of notice; two cheques have been collected during 1998 as security towards the loan raised by the accused by pledging gold and on repayment of the amount, receipts at Exs. D1 to D4 have been issued and gold articles were returned and these receipts are the proof of payment of the loan borrowed by the accused during 1998. The said two cheques collected during the said transaction were not returned to the accused and the same were misused and there is also the evidence of D.W. 3 in this regard, who was working as clerk under the complainant at that relevant point of time. In support of his submission he has relied upon some of the citations.

So far as service of notice is concerned, as per the submission of the Counsel for the accused, from 1.4.2003 to 15.6.2003 there was vacation for the college and the Respondent being the lecturer in the college, no notice was served to him nor any intimation was left. Atleast me notice could have been served on the family members but, that has not been done.

The contention of the accused cannot be accepted since, as per Section 27 of the General Clauses Act, when notice sent has returned with a shara ''as not claimed or absent'', then it is deemed to be served for the purpose of prosecuting the matter. The main contention of the complainant is that the accused had issued the cheque subsequently during 2003, in connection with a transaction which is altogether a different one than the one which has taken place between the Appellant and the Respondent during 1998 and that he had not misused the earlier cheque given and the cheque issued by the accused had been already collected by him.

According to the complainant the transaction in the case on hand is of the year 2003. If the accused has issued a cheque leaf to the complainant for a subsequent transaction subsequent to 1998. there would be some document available in the bank to depict the fact as to when the cheque book was issued to the accused - whether earlier to the previous transaction or subsequently thereon, which would give a clear picture as to whether the cheque in question was issued during 1998 by the accused to the complainant or subsequently thereon. Although, the explanation of D.W. 3 would be supporting the case of the accused, but the material evidence available prior to the transaction would be of much relevance. In this regard, apart from the evidence of the witnesses on record, some more evidence could be collected from the banker of the accused to make it clear as to whether the cheques were issued during 1998 or subsequent thereto. If the present cheque on hand is issued to the complainant by the accused during 1998 itself, then, the Court could also verify the serial numbers of the cheque leaves transacted thereafter which would be a better proof to know whether the cheque in question was handed over by the accused to the complainant during 1998 itself. If this cheque is collected from the bank subsequently after 1998, then, the complainant would stand in a better position and it would clarify the stand of the parties.

Hence, having treated the issuance of notice as a concluded aspect, only for the limited purpose of verifying the fact as to whether the cheque has been misused by the complainant or it has been issued by the accused subsequently, the appeal is allowed in part by setting aside the impugned order. The matter is remitted to the trial Court to give a finding on the above aspect, by affording opportunity to both the parties to adduce additional evidence.

The parties are directed to appear before the trial Court on 22.11.2010. Office to send back the records.